POSSESSION. The detention or enjoy ment of a thing which a man holds or exer cises by himself, or by another who keeps or exercises it in his name.
By the possession of a thing we always conceive the condition in which not only one's own dealing with the thing is physically possible, but every other person's dealing with it is capable of being exoluded. Thus, the seaman possesses his ship, but not the water in which it moves, although he makes each subserve his purpose.
Actual possession exists where the thing is in the immediate occupancy of the party. 3 Dev. No. C. 34.
Constructive possession is that which exists in contemplation of law, without actual per senal occupation. 11 Vt. 129. And see 1 Mc Lean, C. C. 214, 265 ; 2 Blackstone, Comm. 116.
2. In order to complete a possession, two things are required: that there be an occu pancy, appreh,ension, or taking ; that the taking be with an intent to possess (ani mus possidendi): hence persons who have no legal wills, as children and idiots, cannot pos sess or acquire possession. Pothier ; Etienne. See 1 Mer. Ch. 358 ; Abbott, Shipp. 9 et seg. But an infant of sufficient understanding may lawfully acquire the possession of a thing.
The failure to take possession is considered a badge of fraud, in the transfer of personal property. See SALE ; MORTGAGE.
3. As to the effects of the purchaser's taking possession, see Sugden, Vend. 8, 9 ; 3 P. Will. 193 ; 1 Ves. Ch. 226 ; 11 id. 464 ; 12 id. 27. See, generally, 1 Harr. & J. Md. 18 ; 5 id. 230, 263 ; 6 ic/. 336 ; 1 Me. 109 ; 1 Harr. & McH. Md. 210 ; 2 id. 60, 254, 260 ; 3 Bibb, Ky. 209 ; 4 id. 412 ; 6 Cow. N. Y. 632 ; 9 id. 241 ; 5 Wheat. 116, 124 ; Cowp. 217 ; Code Nap. art. 2228 ; Code of the Two Sicilies, art. 2134 ; Bavarian Code, b. 2, c. 4, n. 5 ; Pruss, Code, art. 579 ; Domat, Lois Civ. liv.
3, t. 7, s. 1 ; Viner, Abr.; Wolff, Inst. 200, and the note in the French translation ; 2 Greenleaf, Ev. 614, 615 ; Coke, Litt. 57 a; Croke Eliz. 777 ; 5 Coke, 13 ; 7 Johns. N. Y. 1.
In Louisiana. Civil possession exists when a person ceases to reside in a house or on the land which he occupied, or to detain the movable which he possessed, but without intending to abandon the possession. It
is the detention of a thing by virtue of a just title and under the conviction of pos sessing as owner. La. Civ. Code, art. 3392, 3394.
Natural possession is that by which a man detains kt. thing corporeal : as, by occupying house, cultivating ground, or retaining a movable in his possession. Natural posses sion is also defined to be the corporeal deten tion of a thing which we possess as belong ing to us, without any title to that possession, or with a title which is void. La. Civ. Code, art. 3391, 3393.
4. Possession applies properly only to cor poreal things, movables and immovables. The possession of incorpmeal rights, such as servitudes and other rights of •that nature, is only a quasi-possession, and is exercised by a species of possession of which these rights are susceptible. Id. art. 3395.
Possession may be enjoyed by the proprie tor of the thing or by another for him : thus, the proprietor of a house possesses it by his tenant or farmer.
To acquire possession of a property; two things are requisite : the intention of possess ing as owner ; the corporeal possession of the thing. Id. art. 3399.
5. Possession is lost with or without the consent of the possessor. It is lost with his consent,—when he transfers this possession to another with the intention to divest himself of it ; when he does some act which mani fests his intention of abandoning possession : as, when a man throws into the street furni ture or clothes of which he no longer chooses to make use. Id. art. 3411. A possessor of an estate loses the possession agairtst his consent --when another expels him from it, whether by force in driving him away, or by usurping possession during his absence, and prevent ing him from re-entering ; when the pos sessor of an estate allows it to be usurped and held for a year, without during that time having done any act of possession or inter fered with the usurper's possession. Id. art. 3412.