Possessio

Possession.

Lat In the civil law. That condition of fact under which one can exercise his power over a corporeal thing at his pleasure, to the exclusion of all others. This condition of fact is called "detention," and it forms the substance of possession in all its varieties. Mackeld. Rom. Law, § 238. "Possession," in the sense of "detention," is the acfual exercise of such a power as the owner has a right to exercise. The term "possessio" occurs in the Roman jurists in various senses. There is possessio simply, and possessio civilis, and possessio naturalis. Possesmo denoted, originally, bare detention. But this detention, under certain conditions, becomes a legal state, inasmuch as it leads to ownership, through usuoapio. Accordingly, the word "possessio," which required no qualification so long as there was no other notion attached to possessio, requires such qualification when detention becomes a legal state. This detention, then, when it has the conditions necessary to usucapio, is calied "possessio civilis;" and all other possessio as opposed to dvilis is naturalis. Sandars, Just. Inst. 274. Wharton.

In old English law. Possession; seisin. The detention of a corporeal thing by means of a physical act and mental intent, aided by seme support of right. Bract, fol. 38b.

— Pedis possessio. A foothold; an actual possession of real property, implying either actual occupancy or enclosure and use. See Lawrence v. Fulton, 19 Cal. 690; Porter v. Kennedy, 1 McMul. (S. C.) 357.

— Possessio bona fide. Possession in good faith. Possessio mala fide, possession in bad faith. A possessor bona fide is,one who believes that no other person has a better right to the possession than himself. A possessor mala fide is one who knows that he is not entitled to the possession. Mackeld. Rom. Law, § 243.

— Possessio bonorum. In the civil law. The possession of goods. More commonly termed "bonorum possessio," (q. v.)

— Possessio civilis. In Roman law. A legal possession i. e., a possessing accompanied with the intention to be or to thereby become owner; and, as so understood, it was distinguished from "possessio naturalis," otherwise called "nuda detentio," which was a possessing without any such intention. Possessio dvilis was the basis of usucapio or of longi temporis possessio, and was usually (but not necessarily) adverse possession. Brown.

— Possessio fratris. The possession or seisin of a brother; that is, such possession of an estate by a brother as would entitle his sister of the whole blood to succeed him as heir, to the exclusion of a half-brother. Hence, derivatively, that doctrine of the older English law of descent which shut out the halfblood from the succession to estates; a doctrine which was abolished by the descent act, 3 & 4 Wm. IV. c. 106 See 1 Steph. Comm. 385; Broom, Max. 532.

— Possessio longi temporis. See Usucapio.

— Possessio naturalis. See Possessio Civilis.

1.

In old English law. Possession; seisin; the detention of a corporeal thing by intent and act, aided by some support of right. Possessio fratris: possession of a brother, the kind of possession rorem esse hseredem: simple makes the sister In the dvil law. That cise his power over a of all others. Possessio

1.

In the civil law. That condj^ion of fact under which one can exercise his power over a corporeal thing at his pleasure, to the exclusion of all others. This condition of fact is 1 Mackeld. Civ. Law, 234, § 229. See Burrill. Possessio, in its primary sense, is the condition or power by virtue of which a man has such a mastery over a corporeal thing as to deal with it at his pleasure, and to exclude other persons from meddling with it. This condition or power is detention; and it lies at the bottom of all legal senses of the word possession. This possession is no legal state or condition, hut it may be the source of rights; and it then becomes possessio, in a juristical or legal sense. Still, even in this sense, it is not in any way to be confounded with property {proprietas}. A man may have the juristical possession of a thing without being the proprietor, and a man may be the proprietor of a thing without having the juristical possession of it, and consequently without having the detention of it. {Dig. 41, tit. 2, § 12.) Ownership is the legal capacity to operate on a thing according to a man's pleasure, and to exclude everybody else from doing so. Possession, in the sense of detention, is the actual exercise of such a power as the owner has a right to exercise. The term possessio occurs in the Roman jurists in various senses. There is possessio simply, and possessio civilis and possessio naturalis. Possessio denoted, originally, bare detention. But this detention, under certain conditions, becomes a legal state, inasmuch as it leads to ownership, through usucapio. Accordingly, the v/ordpossessio, which required no qualification so long as there was no other notion attached to possessio, requires such qualification when detention becomes a legal state. This detention, then, when it has the conditions necessary to vsucapio, is called possessio civilis; and all other possessio as opposed to civilis is naturalis, {Smith Diet. o/Antiq.; Sand. Just. 274.) Wharton. 2.

In the common law. Possession, seisin, used especially of lands. Bracton treats possessio and seisina as synonymous, and considers possession under a multitude of subdivisions; as civil, which was retained only by intention; natural, which was held only by the physical act; rightful and wrongful; true, and imaginary or fictitious; naked, where a person had no right, but only a mere foothold or standing; clothed, as with right, title, or prescription; and many others. There was also one kind which consisted of some degree of possession, but no right, as the possession of a guardian or creditor; another kind, which consisted of a good deal of possession and a little right, as the possession of an ancestor who died seised, another having the mere right; another kind, which consisted of a great deal of possession and some right, as where one held land for a term by the grant of a person who demised it to hun, but did not die seised; and a fourth kind, thing, and the property of the fee, and the freehold with seisin, but of which he did not die seised. {Bract, fol. 39.) Burrill. Poasessio fratris. A brother's possession. The possession of lands by a brother, such as to make his sister of the whole blood his heir, in preference to a brother of the half blood. The doctrine is explained under the maxim below. It is often called the doctrine of possessio fratris; and the term is used to denote the exclusion of the half blood from the succession. Possessio bona fide. Possession in good faith. Possesfiomalaf.de. Possession in bad faith. A person is said to have possession in good faith when he acquired or entered on the property, honestly, in the belief that he had right, and without reason to believe another had a superior claim. He is said to have possession in bad faith when he took it with notice that there were competing and better rights, and that he could not honestly take. The condition of the party's knowledge at the time of acquiring governs, for most purposes. Possessio fratris de feodo simplici facit sororem esse haeredem. Possession by a brother of an estate in feesimple makes the sister to be heir. The principle intended to be expressed by the maxim is this: The possession of an estate in fee-simple by a brother makes his sister of the whole blood his heir, in preference to a brother of the half blood. This was the rule of the English law of descent, and is thus illustrated by Blackstone: If a man had two sons, A and B, by different wives, these two brethren were not brethren of the whole blood, and, therefore, should never inherit to each other, but the estate should rather escheat to the lord. Even if the father died, and his lands descended to his eldest son. A, who entered thereon, and died seised without issue, still B should not be heir to this estate, because he was only of the half blood to A, the person last seised, but it should descend to a sister (if any) of the whole blood to A. 2 Bl. Com. 227. This continued to be the rule in England, until abolished by statute (3 & 4 personal property of intestates are distributed among the heirs, without reference to actual seisin of the ancestor, the doctrine of possessio fratris has no application. In some of the states, however', the doctrine appears to have been recognized. 4 Kent Com..384, 385.

In practical application, the doctrine was not limited to possession of a brother: the possession of a guardian or a tenant for years was within the rule. The question of the possession or seisin of the ancestor is not, since the descent act (3 & 4 Wm. IV. ch. 106), of any importance in ascertaining who is lieir, inasmuch as the descent is now traced from the last person entitled who did not inherit, and not from the last person seised. Brown.