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C. Capacity to Acquire Possession: Cases 22–38

Chapter 1: Acquiring Possession: Cases

Cases 22–31
Cases 32–38

Cases 22–31.  This set of cases concerns legal capacity to acquire possession of property.  The issue is considered from two points of view: (1) the capacity to acquire possession in one’s own interest, and (2) the capacity to acquire possession through an intermediary.  Given the very different social realities of the ancient world, some of the issues raised by these cases obviously will have no analogs in the modern common law: e.g., acquiring through slaves and persons “in power.” Others do have modern analogies: e.g., the capacity of wards, minors, and incompetents.

Discussion Question:
  1. The basic common law rules regarding the capacity of wards and incompetents to initiate an adverse possession are summarized at 3 Am. Jur. 2d Adverse Possession § 153 (2010) as follows:

    An infant generally may acquire title by adverse possession. A guardian’s possession is deemed the possession of the ward, and is admissible to prove adverse possession by the ward.

    An incompetent person may initiate an adverse possession if of sufficient mental capacity to assert a claim of exclusive ownership, and an adverse possession begun while one is competent will not be destroyed by a subsequent adjudication of incompetency. (footnotes w. citations omitted)

    Are the common law rules as presented in this summary consistent with the rules of Cases 22–31?

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Cases 32–38. The problem posed by these cases is whether the requisite degree of control, the physical requirement of corpus (corpore), sufficient to acquire possession can be exercised through an intermediary who is sui iuris.

Discussion Questions:
  1. Why is an intermediary sui iuris a problem?

  2. In general the Roman rule does not allow an intermediary who is sui iuris to acquire possession for another, although an exception is made in the case of an intermediary who is acting as a procurator.  The procurator is a kind of agent with broad, though not unlimited, authority to manage the business affairs of his principal.  At common law, the rules of agency would determine whether the acts of an agent will have a legal consequence for the principal, and the issue of the principal’s physical contact is therefore immaterial.  But what if the intermediary is neither an agent nor an implied agent?  Leaving aside situations involving concurrent interests (e.g., co-tenancies, partnerships) and, as in Roman law, where a guardian or curator is acting on behalf of a ward, perhaps the clearest analogy in common law would be when a prescriptive property right is claimed by a land-owner who adversely possesses though a lessee or series of tenants.  See Deregibus v. Silberman Furniture Co., 121 Conn. 633, 186 A. 553, 105 A.L.R. 1183 (1936); and 105 A.L.R. 1187. 
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Chapter 1: Introduction | A. Cases 1–11
B. Cases 12–21 | C. Cases 22–38

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