Table of Contents
CHAPTER II - OF POSSESSION
Art. 16. Possession taken in a proper sense, is the detention of a thing which he who is master of it, or who has reason to believe that he is so, has in his own keeping or in that of another person by whom he possesses.
Art. 17. Possession can be properly exercised only on corporeal things either moveable or immoveable.
Things incorporeal may however be said though improperly to be possessed, such as services and the like, by that kind of possession of which they are susceptible.
Art. 18. One may possess a thing not only by one's self, but also by other persons.
Thus the proprietor of a house or other tenement, possesses by his tenant or by his farmer; the minor by his tutor or curator, and in general every proprietor by the persons who hold the thing in his name.
Art. 19. Seeing the use of property is to have a thing in order to enjoy it and to dispose of it, and that it is only by possession, that one can exercise this right, possession is therefore naturally linked to the property.
Thus possession implies a right and a fact, the right to enjoy annexed to the right of property and the fact of the real detention of the thing, that it be in the hands of the master or of another for him.
Art. 20. Although the possession be naturally linked with the property, yet they may subsist separately from each other, for it often happens that the property of a thing being controverted between two persons, there is one of the two who is owned to be possessor, and it may be that it is the person who is not the right owner, and that thus the possession may be separated from the property.
Art. 21. There are two sorts of possessors, those who possess honestly and fairly, and those who possess knavishly.
The honest and fair possessor is he who is truly master of the thing which he possesses or who has just cause to believe that he is so, although it may happen in effect that he is not; as it happens to him who buys a thing which he thinks belongs to the person whom he buys it of, and yet belongs to another.
The knavish possessor is he who possesses as master, but who assumes this quality when he knows very well either that he has no title to the thing or that his title thereto is vicious and defective.
Art. 22. We must reckon in the number of knavish possessors not only usurpers, but also those who foreseeing that the right which they pretend to have, will be disputed and fearing lest they should be hindered from taking possession thereof, take some opportunity of getting into possession surreptitiously without the knowledge of the person from whom they expect the opposition.
Art. 23. The natural connection which is between the possession and the property, makes the law to presume that they are joined in the person of the possessor and until it be proved that the possessor is not the right owner, the law will have him, by the bare effect of his possession, to be considered as such.
And it suffices of a year's possession, even in the person of an usurper, if it has been peaceable and uninterrupted, to make him to be considered as a just possessor and even as a master, until the true owner makes out his right.
Art. 24. Either honest or knavish possessors who have possessed during a year or upwards, as it is said in the preceding article, ought to be maintained in their possession and enjoyment of the thing, until they who trouble them in their possession, prove clearly their right, and if a demand of the property against a possessor, is not grounded upon good and sufficient titles, it is enough for the possessor to alledge his possession without producing any other defence.
Art. 25. Seeing the possession is in some cases sufficient of itself, to maintain the possessor therein, it often happens that the two parties who claim the property of one and the same estate, pretend likewise that they are in possession of it, and that each of them on his part, in order to be maintained in the possesion, endeavors to make it appear that he is possessor, and that they reciprocally molest one another by acts which may shew them to be in possession. And in these cases, if it appears that one of the two has been in peaceable possession for the space of one year, before the disturbance given him by the other, he will be maintained therein.
Art. 26. The controversies whereof the matter in dispute is to regulate between two persons who pretend to be possessors of one and the same thing, which of the two shall be maintained in the possession, ought to be instructed and decided without examining into the right of property. For the discussion of the titles necessary for deciding the right of property, demands often delays which the dispute about the possession cannot admit of, and seeing it is of importance not to leave two possessors exposed to the danger of the consequences of such a dispute, the matter touching the possession shall be regulated in the first place, and it shall be only after that the same shall be fully ended, that enquiry shall be made into the right of property.
Thus he who declared to be possessor has the advantage of retaining the possession, whilst the property remains undetermined.
Art. 27. He who pretends to have been interrupted in his possession, ought to make his demand or complaint thereof, within a year to be reckoned from the day of his being turned out of possession, for if he leaves his adversary in possession for the space of a year, he has lost his own possession, whatever apparent right he may have had to it; but he retains his action for the property.
Art. 28. If the question touching possession be doubtful, so that there does not appear ground enough to maintain any one of the possessors therein, the possession will be adjudged in favor of the person who shall have the most probable title; or the judge will order the thing in controversy to be sequestred, until the question relating to the property shall be decided.
Art. 29. The possession of him who possesses with a good conscience, has this effect that, if in the time that he acquired the possession, the property was not joined therewith, he may afterwards acquire such property by a possession continued during the time regulated for prescribing, as it is expressed in the following chapter.
Art. 30. The possession of him who possesses with a good conscience, has also this effect, that while he is ignorant of a better right to the thing than his own, he enjoys, and makes his own the fruits which he gathers, and not only those which he reaps from the ground by his own industry, but likewise those which the ground produce without culture, and if it happens that the thing is evicted from him he shall restore no part of what he enjoyed before the demand, but he will be obliged to restore the fruits which he reaped after the demand.
Art. 31. The possession of him who possesses knavishly has this effect, that it hinders him from prescribing (except by thirty years) and obliges him to restore not only the fruits which he has enjoyed, but likewise those which a careful father of a family might have reaped from the land or tenement which he was in possession of.
|< Previous | Next >||© Manuscript notes copyright 1968 by Louis V. de la Vergne.|