Table of Contents
CHAPTER III - OF PRESCRIPTION
SECTION I - OF THE POSSESSION REQUIRED TO ESTABLISH PRESCRIPTION
Art. 32. Prescription is a manner of acquiring property or discharging debts by the effect of time and under the conditions regulated by law.
Thus the possessor acquires the property of an estate by peaceable possession during the time regulated by law, and the ancient proprietor is stript thereof for having ceased to possess it, or to demand it, during the said time.
Thus a creditor looses his debt for having omitted to demand it, within the time limitted for prescription and the debtor is discharged from it by the long silence of his creditor.
Thus other rights are acquired by long enjoyment and are lost for want of exercising them.
Art. 33. One cannot renounce a prescription not yet acquired, but it is lawful to renounce prescription when once acquired.
Art. 34. Such renunciation of prescription is either expressed or tacit.
A tacit renunciation results from a fact which gives a presumption of the relinquishment of the right acquired by prescription.
Art. 35. To be capable of renouncing to the right of prescription, one must be capable of alienating his property.
Art. 36. Prescription may be pleaded in every stage of the cause, even on the appeal.
Art. 37. Creditors and every other person who may have an interest in the acquiring of an estate by prescription, have a right to plead it, even in case the person claiming such an estate, should renounce the said right of prescription.
Art. 38. Prescription requires a continued, uninterrupted, peaceable, public and unequivocal possession; it is also required that the person claiming the prescription should have possessed animo Domini, that is, as master or proprietor.
Art. 39. A person is presumed to have possessed as master or proprietor, unless it appears that such possession began in the name and for another, in which case the law supposes that the possession must have been continued for and in the name of said person, unless the contrary be shewn.
Art. 49. The circumstance of having been in possession by the permission or through the indulgence of another person, gives neither legal possession nor the right of prescribing.
Thus those who possess precariously, that is by having prayed the master to let them have the possession, do not deprive him thereof, but possessing by his consent, they possess for him.
Art. 41. A possession by violence not being legal, does not confer the right of prescribing as long as said violence continues.
Art. 42. The actual possessor when he proves that he has formerly been in possession, shall be presumed to have been in possession also during the intermediate space of time, until the contrary be proved.
Art. 43. If a possessor chances to die before he has acquired the prescription and his heir continues in possession, we join together the time of the possession of the one and the other and the prescription is acquired to the heir after the possession of his ancestor and his own joined together, have lasted the time regulated for prescribing.
And the same thing holds in the possession of the buyer joined to that of the seller to whom he succeeds, and in the possession of the donee and donor, of the legatee and testator, and in the same manner of all those who possess successively, having right the one from the other.
Art. 44. The possessions of divers possessors who succeed the one to the other, are joined only in the cases where they follow one another without interruption.
Art. 45. Those who possess for others and not in their own name, cannot prescribe, whatever may be the time of said possession.
Thus farmers, tenants, depositaries, usufructuaries and all those generally who hold by a precarious tenure, and in the name of the proprietor, cannot prescribe on the thing thus held.
Art. 46. The heirs of the persons holding under the tenures mentioned in the preceding article, cannot prescribe any more than those from whom they hold said things.
Art. 47. Those to whom tenants, depositaries and such other persons having only a precarious possession, have conveyed the same by a title capable of transferring property, may prescribe for the same.
Art. 48. One cannot prescribe against his own title, in this sense, that he cannot change, by his own act, the nature and the origin of his possession.
Art. 49. But a man can prescribe against his own title, in this sense, that he can prescribe against an obligation which he may have contracted.
SECTION II - OF THE CAUSES WHICH SUSPEND OR INTERRUPT PRESCRIPTIONS
Art. 50. There are two modes of interrupting prescription that is by a natural interruption or by a legal interruption.
Art. 51. A natural interruption is said to take place when the possessor is deprived of the possession of the thing during more than a year, either by the ancient proprietor or even by a third person.
Art. 52. A legal interruption takes place when the possessor has been cited to appear before a court of justice, on account either of the property or of the possession; and the prescription is interrupted by such demand, whether the suit has been brought before a court having a competent jurisdiction or not.
Art. 53. Prescription ceases likewise to run, whenever the debtor or possessor makes acknowledgement of the right of the person whose title they prescribed.
Art. 54. A citation given to a debtor in solido to appear before a court of justice or the acknowledgement made by such debtor, interrupts the prescription against all other co-debtors and even against their heirs.
But the citation given to one of the co-heirs of a debtor in solido, or the acknowledgement of such co-heir does not operate an interruption of prescription with respect to the other co-heirs, even in the event of a debt being on a mortgage, if the obligation be not indivisible.
The citation of one of the heirs of the debtor in solido or his acknowledgement interrupts the prescription, with respect to the other co debtors, only for the share belonging to that heir.
The prescription can be interrupted for the whole debt against all the other co-debtors, only when all the heirs of the deceased co-debtor, have been cited or have acknowledged the debt.
Art. 55. The citation of the principal or his acknowledgement, interrupts the prescription of the security.
Art. 56. Minors and persons under interdiction, cannot be prescribed against, except in the cases provided by law.
Art. 57. Husbands and wives cannot prescribe against each other.
Art. 58. Married women may be prescribed against, though not separated from their husbands, for all the property belonging to them and administered by their husbands, saving their recourse against said husbands.
Art. 59. But prescription does not take place during marriage, as it respects property alienated which made a part of the dowry, as provided under the title of marriage contract.
Art. 60. Prescription is equally suspended during marriage;
1st. When the wife can only be entitled to an action, after having chosen between accepting or renouncing the community;
2d, When the husband having sold an hereditary estate of his wife, without her consent, is bound as a warranty for the validity of such sale, and in every case, when the action of the wife may be prejudicial to her husband.
Art. 61. Prescription does not run against debts depending on a certain condition, until such condition has arrived; nor on account of a warranty, until the eviction takes place; nor does it run against a debt to be paid on a certain day, until that day has arrived.
Art. 62. Prescription does not run against a beneficiary heir, with respect to the debt due him by the estate.
But it runs against a vacant estate, though no curator has been appointed for said estate.
Art. 63. It runs likewise during the three months which the law grants for the making of the inventory and the forty days given for deliberating.
|< Previous | Next >||© Manuscript notes copyright 1968 by Louis V. de la Vergne.|