It was a rule of the Roman law, that a man who was in possession under a title emanating from another, might not make interversion, and commence to hold independently of the title to which his holding was subordinate, cum nemo causam sibi possessionis mutare possit. No man might change the cause of his possession, and hold adversely to the right under which he entered, unless the character of his possession was changed by some cause without. There could be no interversion, nulla extrinsecus accedente causa.

Savigny is of opinion that the rule in question had not been properly understood by most writers, especially before the discovery of the Institutes of Gaius. He says that it seems to have been supposed that the rule rendered it absolutely impossible, even with the co-operation of a third party, to change the cause of possession, though such is not the meaning of the rule; for if the possessor in bad faith of a thing, purchase it of the proprietor, or of him whom he supposed to be such, the cause of the possession is completely

IL 5, Code de Acq. Poss. 2 Tr. de la Poss., p. 69, Edition of 1842, Paris. VOL. 10.-5

and effectually changed; and, on the other hand, if the tenant expels the lessor, he has effectually changed the cause of possession from the causa conductionis to the causa dejectionis, and will thus arrive at true possession. The rule opposes no obstacle to such a change, and there was no necessity for a positive prohibition, for the lessor is sufficiently protected by the interdict de vi, and the expulsion or ouster could never, by the Roman law, be a step to usucapion. The rule, therefore, he considers applicable to those few cases where an unjust and arbitrary cause might be changed to one which was valid and efficacious, but where usucapion was prevented by the application of a rule altogether positive in its nature, as in the following cases. Before the heir has taken possession of the things belonging to the succession, any one might take possession of those things and acquire title by usucapion as heir, (pro herede.) For usucapion in such a case, by the Roman law, neither good faith nor a just title being required, one year only was necessary to its accomplishment, even for immovable property. This, therefore, was a cause of possession to which the positive rule of prohibition was applicable, for it was founded upon a dishonest intent of the party taking possession, and was nevertheless a just cause of usucapion, justa usucapionis causa, which distinguished it entirely from the case of a lessor expelled by his tenant. The reasons for the recognition of a possession so unjust, and of the usucapion founded therefrom, were special, and the law itself was changed by Adrian.

The ancient rule, nemo sibi causam possessionis mutare potest, applied in the following manner. If one was in possession as a purchaser, (pro emptore,) and was in the course of acquiring title by usucapion in that character, or if he had natural possession of a thing as depositary or bailee, on the death of the true proprietor, usucapio pro herede, usucapion in the character of heir, might be of great advantage to each of these possessions. The purchaser of immovable property acquired title in one year, instead of two, which were necessary in his character of purchaser, and the depositary or bailee, to whom in that character usucapion was impossible, was thus enabled to acquire a right by usucapion. The rule nemo, &c.,

that no one may change the cause of his possession, might be opposed to such possessions. Those who had once commenced to possess in a certain manner, were not permitted, with a consciousness of its unlawfulness, to change that possession to a possessio pro herede. Such, according to Savigny, was the design of the rule in question, though he admits that it has entirely lost its true signification since the time of Justinian. The rule by which possession at the common law is affected, and which is far from being understood as an arbitrary or positive rule, is the same which was applicable, under the law of Justinian, to prescription longissimi temporis, or cases of possession for thirty years, and the principle of the rule still applies to possession which commences lawfully and in subordination to title.

The meaning of the rule is, that a man shall not change, by his own act, the character of his possession, so as to give effect to usucapion or prescription. That a tenant, who entered under a rightful title and acknowledged the authority of his lessor, might acquire possession by the simple act of expelling his lessor, although he could not, by the old law, render possession thus acquired available to usucapion, is sufficiently apparent from the texts of the Digest. Possession, says Cujas, does not require good faith, though usucapion demands good faith. Possession is not always available to usucapion. Although violence prevents alike usucapion and prescription longi temporis, it does not obstruct prescription longissimi temporis, where there has been a possession of thirty years after the act of violence has ceased.

The lessee, therefore, who had, under certain circumstances, acquired the possession of land leased to him by violence, that is, by holding out the lessor and denying his title, acquired an absolute right by the law of Justinian, after a possession of thirty years.

The rule in question has application to all cases at the civil law, or the common law, in which prescription may be effectual, though not founded upon a title commencing in good faith.

The principle of the rule is independent of any positive regula

3 Cujacius, vol. 3, p. 285, ch. 12.

1 D. 43, 12, 16, and 18.

2 Cujacius, vol. 6, p. 663.

tion; it is that a person who has acquired a possession subordi nate to another's right, shall not, by the act of his own mind, change the character of that possession, and at his own election hold independently and adversely.

"The sense of the rule," says D'Argentrée,' "is that no man shall mentally, alone, and by a silent thought, change the cause of his possession-that is, elect to hold for a different cause from that for which he had previously held." "So no man, by his intention alone, can change the nature of possession which he has received to hold in another name; for example, if a tenant should resolve to make no further payment to the owner of whom he held, no interversion of possession is effected by the operations of his own mind. Some act is necessary."

Interversion is effected by a conveyance from the owner of land to his tenant, who thereafter will hold in virtue of the extrinsic cause contemplated by the rule, and also when the land comes to the tenant by descent.

The cause of possession may also be changed by a conveyance from a third person claiming to be the owner of the land. If the tenant is aware that the person from whom he thus derives title, is not the true owner, he will be a possessor in bad faith, but he may prescribe after thirty years by the civil law.2

The question has been considered by French writers, whether after such a conveyance from a third person to the tenant, some refusal or act equivalent to an expulsion was necessary, in reference to the owner, to mark a change in the character of the possession. Dunod says, that if the tenant refuses, after a title thus derived, to yield any part of the profits to the owner, if he declares to him that he will no longer hold the land under him, but that he will enjoy the land as his own, this will be a change in the character of the possession by an extrinsic fact, unjust indeed, but which, nevertheless, is the commencement of a possession, the cause of which is changed for him, but not by himself.

1 D'Argentrée, art. 265, ch. 4, p. 863.

2 D'Argentrée, art. 265, ch. 4, Nos. 29 and 30.

3 Dunod, Tr. des Prescriptions, p. 36.

S'il refuse après cela de faire part des fruits à son maitre; s'il lui déclare qu'il ne veut plus tenir de lui ces heritages, mais qu'il en veut jouir comme des siens propres, ce sera un changement de possession par un fait extérieur, injuste à la vérité, mais qui ne laissera pas de donner commencement à la possession, quia non sibi mutare sua ipsi mutari dicetur causa possessionis.

The acquisition of a new title, it would seem, was not considered by this writer as sufficient to effect an interversion, unless with a refusal on the part of the tenant to account for the profits. A denial of the right of the owner, as well as a new title, was supposed necessary to change the cause of possession. Troplong controverts this notion,1 and is of opinion that a denial of the right and a refusal to account is important only as giving publicity to the newly acquired title, and as excluding the vice of clandestinity. The title, he says, is only effectual when it is sustained by a possession which is neither equivocal nor clandestine. It is necessary, in order to effect a change in the character of the possession, that the owner should have notice of the new title. If the tenant permits the party, in subordination to whose right he had possession, to remain in ignorance of the conveyance, the cause of the possession will not be changed, but if he communicates that fact, or if the publicity attending his title and claim are such as to make them known to him, no express refusal to account, or denial of the right of the owner is necessary, because the title itself is supposed to be the cause of interversion, and this, when publicly asserted, is in itself a denial of the right under which the possession had commenced. In support of this view, Troplong cites the provisions of the French Code, by which a conveyance, emanating from a third person, and contradiction or a denial of right are made distinct and independent causes of interversion. Whereas, if contradiction in express terms had been necessary, that would have been declared to be the single cause of interversion.

Contradiction, or a refusal to account and a denial of the right of the person of whom possession had been held, is in itself a mode

1 Troplong, Tr. de la Prescription, No. 507.

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