Whoever is eating the fruits is presumed to possess: title, good faith and the tribute of an encomienda

Claims

Every assertion below is bound to registered sources and carries its own confidence. Weight them; do not treat the page as uniformly authoritative.

1. The presumption that runs through the whole run is stated first, and it identifies possession with the taking of tribute. At §5 of libro III, capítulo XXXI of the Política Indiana "Pero en efecto, quando se deduxere en juicio solo el possessorio, aquel en duda se ha de juzgar, que possee, que estuviere gozando los frutos de la Encomienda: porque regularmente su percepcion prueba la possession, como lo enseñan muchos textos, y AA, que refieren Mascardo, y D. Christoval de Paz." The chapter's printed SUMARIO makes the same point its fifth head, "La percepcion de los frutos prueba la possession." This entry is scoped to §§5-12.

   confidence 0.9Política Indiana, libro III, capítulo XXXI, §§5-12 — possession, title and good faith as they governed the fruits of an encomienda: the rule at §5 that where only the possessory is deduced, he is in doubt judged to possess who is enjoying the fruits of the encomienda, because regularly their perception proves possession; at §6 that, cæteris paribus, the older possession is preferred to the newer in the possessory called retinendæ and the less vicious to the more vicious, though the less ancient who shows title incontinenti is preferred if he proves with it that he is possessing, because title alone neither gives nor proves possession; at §7 that he who has a just and legitimate title of his encomienda given by the King is to be preferred to him who has one from the viceroy or governor; at §8 that the title a holder would use must be just and legitimate, that an unjust or invalid title to which the law is opposed from its beginnings is not held for a title and can cause no good faith, that although in prescription of long time it suffices to allege title and good faith without exhibiting it, an unjust title will work nothing and will rather cause bad faith, and that such a possessor as an intruder must be removed de facto and condemned for his bad faith not only in the fruits he has perceived but in those he could have perceived; at §9 that a just title accompanied by possession and good faith protects the holder in the enjoyment of the fruits and obliges those who took them from him to deliver them, to the degree that even if he is afterwards defeated in the suit on the property he does not return the fruits so perceived, especially if they are industrial — 'quales Yo pienso ser los de las Encomiendas, pues se dán por las cargas, obligaciones, y servicios anexos à ellas'; at §10 that because the litis contestatio begins to put such possessors in bad faith, condemnation in the fruits from that day is regularly made in these suits, that the judge may make it ex officio though it be not asked, and that in restitutory suits the condemnation runs not from the condemnation but from the day of the occupation, or from the day fixed for the enjoyment, without need of further petition or interpellation; at §11 that the same reading holds wherever the title or ground of the condemnatory sentence originated in a cause held for none or annulled as unjust; and at §12 the falencias and excuses by which a possessor who had just occasion to litigate and good faith in not yielding may escape condemnation in the fruits, 'aunque essa buena fee se aya causado de titulos invalidos, injustos, ò temerarios, o de error de Derecho, que aunque no pudiera bastar, ni aprovechar para prescribir, aprovecha para escusar la dicha restitucion' · primary

2. Where two claimants both possessed, age and defect decide, with an escape for a documented newcomer. At §6 "cæteris paribus, la possession mas antigua se ha de preferir à la mas nueva en el possessorio, que llaman Retinendæ, y la menos viciosa, à la mas viciosa, aunque si el menos antiguo mostrare Titulo incontinenti, debe ser preferido, como juntamente con él pruebe tambien, que está posseyendo: porque el Titulo solo, no dá, ni prueba possession." A paper grant by itself proved nothing; it had to be joined to the fact of holding.

   confidence 0.9Política Indiana, libro III, capítulo XXXI, §§5-12 — possession, title and good faith as they governed the fruits of an encomienda: the rule at §5 that where only the possessory is deduced, he is in doubt judged to possess who is enjoying the fruits of the encomienda, because regularly their perception proves possession; at §6 that, cæteris paribus, the older possession is preferred to the newer in the possessory called retinendæ and the less vicious to the more vicious, though the less ancient who shows title incontinenti is preferred if he proves with it that he is possessing, because title alone neither gives nor proves possession; at §7 that he who has a just and legitimate title of his encomienda given by the King is to be preferred to him who has one from the viceroy or governor; at §8 that the title a holder would use must be just and legitimate, that an unjust or invalid title to which the law is opposed from its beginnings is not held for a title and can cause no good faith, that although in prescription of long time it suffices to allege title and good faith without exhibiting it, an unjust title will work nothing and will rather cause bad faith, and that such a possessor as an intruder must be removed de facto and condemned for his bad faith not only in the fruits he has perceived but in those he could have perceived; at §9 that a just title accompanied by possession and good faith protects the holder in the enjoyment of the fruits and obliges those who took them from him to deliver them, to the degree that even if he is afterwards defeated in the suit on the property he does not return the fruits so perceived, especially if they are industrial — 'quales Yo pienso ser los de las Encomiendas, pues se dán por las cargas, obligaciones, y servicios anexos à ellas'; at §10 that because the litis contestatio begins to put such possessors in bad faith, condemnation in the fruits from that day is regularly made in these suits, that the judge may make it ex officio though it be not asked, and that in restitutory suits the condemnation runs not from the condemnation but from the day of the occupation, or from the day fixed for the enjoyment, without need of further petition or interpellation; at §11 that the same reading holds wherever the title or ground of the condemnatory sentence originated in a cause held for none or annulled as unjust; and at §12 the falencias and excuses by which a possessor who had just occasion to litigate and good faith in not yielding may escape condemnation in the fruits, 'aunque essa buena fee se aya causado de titulos invalidos, injustos, ò temerarios, o de error de Derecho, que aunque no pudiera bastar, ni aprovechar para prescribir, aprovecha para escusar la dicha restitucion' · primary

3. Between two titles, the source of the grant ranks them. At §7 "Y assimismo el que tuviere Titulo justo, y legitimo de su Encomienda, dado por el Rey, debe ser preferido, al que le tuviere del Virrey, ò Governador, como se prueba en Derecho, y lo déxo apuntado en otro lugar." Encomiendas were granted both by the crown directly and by viceroys and governors under delegated power, and where the two collided the royal grant won.

   confidence 0.9Política Indiana, libro III, capítulo XXXI, §§5-12 — possession, title and good faith as they governed the fruits of an encomienda: the rule at §5 that where only the possessory is deduced, he is in doubt judged to possess who is enjoying the fruits of the encomienda, because regularly their perception proves possession; at §6 that, cæteris paribus, the older possession is preferred to the newer in the possessory called retinendæ and the less vicious to the more vicious, though the less ancient who shows title incontinenti is preferred if he proves with it that he is possessing, because title alone neither gives nor proves possession; at §7 that he who has a just and legitimate title of his encomienda given by the King is to be preferred to him who has one from the viceroy or governor; at §8 that the title a holder would use must be just and legitimate, that an unjust or invalid title to which the law is opposed from its beginnings is not held for a title and can cause no good faith, that although in prescription of long time it suffices to allege title and good faith without exhibiting it, an unjust title will work nothing and will rather cause bad faith, and that such a possessor as an intruder must be removed de facto and condemned for his bad faith not only in the fruits he has perceived but in those he could have perceived; at §9 that a just title accompanied by possession and good faith protects the holder in the enjoyment of the fruits and obliges those who took them from him to deliver them, to the degree that even if he is afterwards defeated in the suit on the property he does not return the fruits so perceived, especially if they are industrial — 'quales Yo pienso ser los de las Encomiendas, pues se dán por las cargas, obligaciones, y servicios anexos à ellas'; at §10 that because the litis contestatio begins to put such possessors in bad faith, condemnation in the fruits from that day is regularly made in these suits, that the judge may make it ex officio though it be not asked, and that in restitutory suits the condemnation runs not from the condemnation but from the day of the occupation, or from the day fixed for the enjoyment, without need of further petition or interpellation; at §11 that the same reading holds wherever the title or ground of the condemnatory sentence originated in a cause held for none or annulled as unjust; and at §12 the falencias and excuses by which a possessor who had just occasion to litigate and good faith in not yielding may escape condemnation in the fruits, 'aunque essa buena fee se aya causado de titulos invalidos, injustos, ò temerarios, o de error de Derecho, que aunque no pudiera bastar, ni aprovechar para prescribir, aprovecha para escusar la dicha restitucion' · primary

4. A bad title is worse than none, and the liability it carries is measured by what the holder could have taken rather than by what he did take. At §8 "el injusto, ò invalido, y à quien la ley resiste desde sus principios, no se tiene por Titulo, ni puede dar, ni causar buena fee, al que en él se funda … todavia, si pareciere, que el que ay es injusto, no obrará cosa alguna, antes causará mala fee. Y el tal posseedor, como intruso, debe ser removido de hecho, y su contrario conservado en su possession, y por la mala fee debe ser condenado, no solo en los frutos, que ha percibido; sino en los que pudo percibir, segun lo que lata, y doctamente resuelve Menochio despues de otros muchos." In a grant whose fruits were the tribute and labour of Indian towns, "los que pudo percibir" is a measure of what could have been exacted, and the page says nothing about how such a figure would have been established.

   confidence 0.9Política Indiana, libro III, capítulo XXXI, §§5-12 — possession, title and good faith as they governed the fruits of an encomienda: the rule at §5 that where only the possessory is deduced, he is in doubt judged to possess who is enjoying the fruits of the encomienda, because regularly their perception proves possession; at §6 that, cæteris paribus, the older possession is preferred to the newer in the possessory called retinendæ and the less vicious to the more vicious, though the less ancient who shows title incontinenti is preferred if he proves with it that he is possessing, because title alone neither gives nor proves possession; at §7 that he who has a just and legitimate title of his encomienda given by the King is to be preferred to him who has one from the viceroy or governor; at §8 that the title a holder would use must be just and legitimate, that an unjust or invalid title to which the law is opposed from its beginnings is not held for a title and can cause no good faith, that although in prescription of long time it suffices to allege title and good faith without exhibiting it, an unjust title will work nothing and will rather cause bad faith, and that such a possessor as an intruder must be removed de facto and condemned for his bad faith not only in the fruits he has perceived but in those he could have perceived; at §9 that a just title accompanied by possession and good faith protects the holder in the enjoyment of the fruits and obliges those who took them from him to deliver them, to the degree that even if he is afterwards defeated in the suit on the property he does not return the fruits so perceived, especially if they are industrial — 'quales Yo pienso ser los de las Encomiendas, pues se dán por las cargas, obligaciones, y servicios anexos à ellas'; at §10 that because the litis contestatio begins to put such possessors in bad faith, condemnation in the fruits from that day is regularly made in these suits, that the judge may make it ex officio though it be not asked, and that in restitutory suits the condemnation runs not from the condemnation but from the day of the occupation, or from the day fixed for the enjoyment, without need of further petition or interpellation; at §11 that the same reading holds wherever the title or ground of the condemnatory sentence originated in a cause held for none or annulled as unjust; and at §12 the falencias and excuses by which a possessor who had just occasion to litigate and good faith in not yielding may escape condemnation in the fruits, 'aunque essa buena fee se aya causado de titulos invalidos, injustos, ò temerarios, o de error de Derecho, que aunque no pudiera bastar, ni aprovechar para prescribir, aprovecha para escusar la dicha restitucion' · primary

5. A good title with good faith goes the other way, and keeps the fruits even in defeat. At §9 "Mas si el Titulo fuere justo, y se hallare acompañado de possession, y de buena fee, no solo el tal posseedor debe ser amparado, y preferido en ella; sino tambien en el goce de los frutos, y que se la entreguen, los que se la huvieren quitado", and the doctrine is extended "en tanto grado, que aunque suceda, que este posseedor sea despues vencido en el juicio de la propiedad, no debe volver los frutos assi percibidos". The winner of the title suit therefore recovered the encomienda but not necessarily the years of tribute that had been taken from it.

   confidence 0.9Política Indiana, libro III, capítulo XXXI, §§5-12 — possession, title and good faith as they governed the fruits of an encomienda: the rule at §5 that where only the possessory is deduced, he is in doubt judged to possess who is enjoying the fruits of the encomienda, because regularly their perception proves possession; at §6 that, cæteris paribus, the older possession is preferred to the newer in the possessory called retinendæ and the less vicious to the more vicious, though the less ancient who shows title incontinenti is preferred if he proves with it that he is possessing, because title alone neither gives nor proves possession; at §7 that he who has a just and legitimate title of his encomienda given by the King is to be preferred to him who has one from the viceroy or governor; at §8 that the title a holder would use must be just and legitimate, that an unjust or invalid title to which the law is opposed from its beginnings is not held for a title and can cause no good faith, that although in prescription of long time it suffices to allege title and good faith without exhibiting it, an unjust title will work nothing and will rather cause bad faith, and that such a possessor as an intruder must be removed de facto and condemned for his bad faith not only in the fruits he has perceived but in those he could have perceived; at §9 that a just title accompanied by possession and good faith protects the holder in the enjoyment of the fruits and obliges those who took them from him to deliver them, to the degree that even if he is afterwards defeated in the suit on the property he does not return the fruits so perceived, especially if they are industrial — 'quales Yo pienso ser los de las Encomiendas, pues se dán por las cargas, obligaciones, y servicios anexos à ellas'; at §10 that because the litis contestatio begins to put such possessors in bad faith, condemnation in the fruits from that day is regularly made in these suits, that the judge may make it ex officio though it be not asked, and that in restitutory suits the condemnation runs not from the condemnation but from the day of the occupation, or from the day fixed for the enjoyment, without need of further petition or interpellation; at §11 that the same reading holds wherever the title or ground of the condemnatory sentence originated in a cause held for none or annulled as unjust; and at §12 the falencias and excuses by which a possessor who had just occasion to litigate and good faith in not yielding may escape condemnation in the fruits, 'aunque essa buena fee se aya causado de titulos invalidos, injustos, ò temerarios, o de error de Derecho, que aunque no pudiera bastar, ni aprovechar para prescribir, aprovecha para escusar la dicha restitucion' · primary

6. The reason given for that extension is the author's own, it is offered as an opinion, and it is the one proposition in the run that is specific to the Indies. Still at §9, the holder in good faith keeps the fruits "especialmente si son industriales, quales Yo pienso ser los de las Encomiendas, pues se dán por las cargas, obligaciones, y servicios anexos à ellas, de que yá se ha tratado, aunque en los de los Feudos, parece, que siente lo contrario Capicio." Industrial fruits are those a holder earns by his own work or charge, as against natural fruits a thing yields of itself; classing the tribute of an encomienda among them treats the Indians' payments as the return on the encomendero's obligations of defence and doctrine. The author marks it as his own view — "quales Yo pienso ser" — and names a feudal authority who held the contrary, which is why this claim sits below 0.9.

   confidence 0.85Política Indiana, libro III, capítulo XXXI, §§5-12 — possession, title and good faith as they governed the fruits of an encomienda: the rule at §5 that where only the possessory is deduced, he is in doubt judged to possess who is enjoying the fruits of the encomienda, because regularly their perception proves possession; at §6 that, cæteris paribus, the older possession is preferred to the newer in the possessory called retinendæ and the less vicious to the more vicious, though the less ancient who shows title incontinenti is preferred if he proves with it that he is possessing, because title alone neither gives nor proves possession; at §7 that he who has a just and legitimate title of his encomienda given by the King is to be preferred to him who has one from the viceroy or governor; at §8 that the title a holder would use must be just and legitimate, that an unjust or invalid title to which the law is opposed from its beginnings is not held for a title and can cause no good faith, that although in prescription of long time it suffices to allege title and good faith without exhibiting it, an unjust title will work nothing and will rather cause bad faith, and that such a possessor as an intruder must be removed de facto and condemned for his bad faith not only in the fruits he has perceived but in those he could have perceived; at §9 that a just title accompanied by possession and good faith protects the holder in the enjoyment of the fruits and obliges those who took them from him to deliver them, to the degree that even if he is afterwards defeated in the suit on the property he does not return the fruits so perceived, especially if they are industrial — 'quales Yo pienso ser los de las Encomiendas, pues se dán por las cargas, obligaciones, y servicios anexos à ellas'; at §10 that because the litis contestatio begins to put such possessors in bad faith, condemnation in the fruits from that day is regularly made in these suits, that the judge may make it ex officio though it be not asked, and that in restitutory suits the condemnation runs not from the condemnation but from the day of the occupation, or from the day fixed for the enjoyment, without need of further petition or interpellation; at §11 that the same reading holds wherever the title or ground of the condemnatory sentence originated in a cause held for none or annulled as unjust; and at §12 the falencias and excuses by which a possessor who had just occasion to litigate and good faith in not yielding may escape condemnation in the fruits, 'aunque essa buena fee se aya causado de titulos invalidos, injustos, ò temerarios, o de error de Derecho, que aunque no pudiera bastar, ni aprovechar para prescribir, aprovecha para escusar la dicha restitucion' · primary

7. Good faith has a fixed end date: the moment the claim is joined. At §10 "De lo qual resulta, que como por la litis contestacion se comienzan à poner en mala fee estos posseedores, se suele hacer tambien regularmente en estos juicios condenacion de frutos desde aquel dia, por faltar, como desde entonces falta, el fundamento, que ocasionaba su adquisicion segun la doctrina de muchos textos, y Doctores, que añaden, que el Juez de oficio puede hacer esta condenacion, aunque no se pida." The judge could make that award without being asked, which matters for the chapter's later question about fruits omitted from a judgment.

   confidence 0.9Política Indiana, libro III, capítulo XXXI, §§5-12 — possession, title and good faith as they governed the fruits of an encomienda: the rule at §5 that where only the possessory is deduced, he is in doubt judged to possess who is enjoying the fruits of the encomienda, because regularly their perception proves possession; at §6 that, cæteris paribus, the older possession is preferred to the newer in the possessory called retinendæ and the less vicious to the more vicious, though the less ancient who shows title incontinenti is preferred if he proves with it that he is possessing, because title alone neither gives nor proves possession; at §7 that he who has a just and legitimate title of his encomienda given by the King is to be preferred to him who has one from the viceroy or governor; at §8 that the title a holder would use must be just and legitimate, that an unjust or invalid title to which the law is opposed from its beginnings is not held for a title and can cause no good faith, that although in prescription of long time it suffices to allege title and good faith without exhibiting it, an unjust title will work nothing and will rather cause bad faith, and that such a possessor as an intruder must be removed de facto and condemned for his bad faith not only in the fruits he has perceived but in those he could have perceived; at §9 that a just title accompanied by possession and good faith protects the holder in the enjoyment of the fruits and obliges those who took them from him to deliver them, to the degree that even if he is afterwards defeated in the suit on the property he does not return the fruits so perceived, especially if they are industrial — 'quales Yo pienso ser los de las Encomiendas, pues se dán por las cargas, obligaciones, y servicios anexos à ellas'; at §10 that because the litis contestatio begins to put such possessors in bad faith, condemnation in the fruits from that day is regularly made in these suits, that the judge may make it ex officio though it be not asked, and that in restitutory suits the condemnation runs not from the condemnation but from the day of the occupation, or from the day fixed for the enjoyment, without need of further petition or interpellation; at §11 that the same reading holds wherever the title or ground of the condemnatory sentence originated in a cause held for none or annulled as unjust; and at §12 the falencias and excuses by which a possessor who had just occasion to litigate and good faith in not yielding may escape condemnation in the fruits, 'aunque essa buena fee se aya causado de titulos invalidos, injustos, ò temerarios, o de error de Derecho, que aunque no pudiera bastar, ni aprovechar para prescribir, aprovecha para escusar la dicha restitucion' · primary

8. In restitutory suits the clock runs further back still. At §10 "Y que esto procede con mayor fuerza, y seguridad en los juicios restitutorios, en los quales no solo desde la condenacion; sino desde el dia de la ocupacion, se suele hacer condenacion de los frutos: Y assimismo, quando huvo dia cierto, y señalado, desde el qual se mandó, que uno gozasse de la Encomienda, y sus frutos, poniendo pena contra los que se los usurpassen, ò impidiessen: porque tambien entonces se le deben volver, y restituir desde el dia de la tardanza, sin que para incurrir en ella, se necessite de otra peticion, ni interpelacion." At §11 the same reading is generalised to every case where the ground of the condemnatory sentence "se dá por ninguna, ò se irrita, por ser injusta".

   confidence 0.9Política Indiana, libro III, capítulo XXXI, §§5-12 — possession, title and good faith as they governed the fruits of an encomienda: the rule at §5 that where only the possessory is deduced, he is in doubt judged to possess who is enjoying the fruits of the encomienda, because regularly their perception proves possession; at §6 that, cæteris paribus, the older possession is preferred to the newer in the possessory called retinendæ and the less vicious to the more vicious, though the less ancient who shows title incontinenti is preferred if he proves with it that he is possessing, because title alone neither gives nor proves possession; at §7 that he who has a just and legitimate title of his encomienda given by the King is to be preferred to him who has one from the viceroy or governor; at §8 that the title a holder would use must be just and legitimate, that an unjust or invalid title to which the law is opposed from its beginnings is not held for a title and can cause no good faith, that although in prescription of long time it suffices to allege title and good faith without exhibiting it, an unjust title will work nothing and will rather cause bad faith, and that such a possessor as an intruder must be removed de facto and condemned for his bad faith not only in the fruits he has perceived but in those he could have perceived; at §9 that a just title accompanied by possession and good faith protects the holder in the enjoyment of the fruits and obliges those who took them from him to deliver them, to the degree that even if he is afterwards defeated in the suit on the property he does not return the fruits so perceived, especially if they are industrial — 'quales Yo pienso ser los de las Encomiendas, pues se dán por las cargas, obligaciones, y servicios anexos à ellas'; at §10 that because the litis contestatio begins to put such possessors in bad faith, condemnation in the fruits from that day is regularly made in these suits, that the judge may make it ex officio though it be not asked, and that in restitutory suits the condemnation runs not from the condemnation but from the day of the occupation, or from the day fixed for the enjoyment, without need of further petition or interpellation; at §11 that the same reading holds wherever the title or ground of the condemnatory sentence originated in a cause held for none or annulled as unjust; and at §12 the falencias and excuses by which a possessor who had just occasion to litigate and good faith in not yielding may escape condemnation in the fruits, 'aunque essa buena fee se aya causado de titulos invalidos, injustos, ò temerarios, o de error de Derecho, que aunque no pudiera bastar, ni aprovechar para prescribir, aprovecha para escusar la dicha restitucion' · primary

9. The run ends by cutting the litis contestatio rule back, and the exception is wide enough to matter. At §12 the author warns that although Surdo seems to hold that fruits are always awarded from the day of joinder, "Esto tiene muchas falencias, y escusas, que ponen otros Autores, las quales, en pudiendo haver dado justa ocasion de litigar, al que esta posseyendo, y con buena fee de no ceder, aunque le pongan demanda, le podrán dar derecho, para que no deba ser condenado en los frutos, aunque essa buena fee se aya causado de titulos invalidos, injustos, ò temerarios, o de error de Derecho, que aunque no pudiera bastar, ni aprovechar para prescribir, aprovecha para escusar la dicha restitucion." A defective or even rash title, or a mistake of law, could thus excuse the holder from returning what he had taken, though it could never found a prescription.

   confidence 0.9Política Indiana, libro III, capítulo XXXI, §§5-12 — possession, title and good faith as they governed the fruits of an encomienda: the rule at §5 that where only the possessory is deduced, he is in doubt judged to possess who is enjoying the fruits of the encomienda, because regularly their perception proves possession; at §6 that, cæteris paribus, the older possession is preferred to the newer in the possessory called retinendæ and the less vicious to the more vicious, though the less ancient who shows title incontinenti is preferred if he proves with it that he is possessing, because title alone neither gives nor proves possession; at §7 that he who has a just and legitimate title of his encomienda given by the King is to be preferred to him who has one from the viceroy or governor; at §8 that the title a holder would use must be just and legitimate, that an unjust or invalid title to which the law is opposed from its beginnings is not held for a title and can cause no good faith, that although in prescription of long time it suffices to allege title and good faith without exhibiting it, an unjust title will work nothing and will rather cause bad faith, and that such a possessor as an intruder must be removed de facto and condemned for his bad faith not only in the fruits he has perceived but in those he could have perceived; at §9 that a just title accompanied by possession and good faith protects the holder in the enjoyment of the fruits and obliges those who took them from him to deliver them, to the degree that even if he is afterwards defeated in the suit on the property he does not return the fruits so perceived, especially if they are industrial — 'quales Yo pienso ser los de las Encomiendas, pues se dán por las cargas, obligaciones, y servicios anexos à ellas'; at §10 that because the litis contestatio begins to put such possessors in bad faith, condemnation in the fruits from that day is regularly made in these suits, that the judge may make it ex officio though it be not asked, and that in restitutory suits the condemnation runs not from the condemnation but from the day of the occupation, or from the day fixed for the enjoyment, without need of further petition or interpellation; at §11 that the same reading holds wherever the title or ground of the condemnatory sentence originated in a cause held for none or annulled as unjust; and at §12 the falencias and excuses by which a possessor who had just occasion to litigate and good faith in not yielding may escape condemnation in the fruits, 'aunque essa buena fee se aya causado de titulos invalidos, injustos, ò temerarios, o de error de Derecho, que aunque no pudiera bastar, ni aprovechar para prescribir, aprovecha para escusar la dicha restitucion' · primary

10. What this entry establishes and what it does not. It establishes the doctrine the standard treatise gave for the fruits of a disputed encomienda: that perception of the fruits proves possession; that in the retinendæ the older and less vicious possession is preferred unless the newer holder shows title and possession together; that a royal title outranks a viceroy's; that an unjust or invalid title causes bad faith and charges the holder with the fruits he could have perceived as well as those he did; that a just title with good faith keeps the fruits even against defeat on the property, on the author's own reasoning that encomienda fruits are industrial; that the litis contestatio ends good faith and the judge may award fruits from that day ex officio, from the day of occupation in restitutory suits; and that good faith arising even from invalid or rash titles, or from error of law, excuses restitution though it cannot found prescription. It establishes nothing about outcomes: not one cédula, law of the Indies, court, date or case appears in these eight paragraphs, which are common and feudal learning applied to an American institution by a judge of the Audiencia of Lima who later sat on the Council of the Indies. And the thing being divided is not neutral: the "frutos" of an encomienda were the tribute and personal service of Indian towns, so every rule here allocates that tribute between two Spanish claimants, and the towns that paid it are not parties to the suit and get nothing back under any of these rules. What the encomenderos owed those towns, and the limits the same body of law placed on what could be exacted, this corpus treats in separate entries.

    confidence 0.9Política Indiana, libro III, capítulo XXXI, §§5-12 — possession, title and good faith as they governed the fruits of an encomienda: the rule at §5 that where only the possessory is deduced, he is in doubt judged to possess who is enjoying the fruits of the encomienda, because regularly their perception proves possession; at §6 that, cæteris paribus, the older possession is preferred to the newer in the possessory called retinendæ and the less vicious to the more vicious, though the less ancient who shows title incontinenti is preferred if he proves with it that he is possessing, because title alone neither gives nor proves possession; at §7 that he who has a just and legitimate title of his encomienda given by the King is to be preferred to him who has one from the viceroy or governor; at §8 that the title a holder would use must be just and legitimate, that an unjust or invalid title to which the law is opposed from its beginnings is not held for a title and can cause no good faith, that although in prescription of long time it suffices to allege title and good faith without exhibiting it, an unjust title will work nothing and will rather cause bad faith, and that such a possessor as an intruder must be removed de facto and condemned for his bad faith not only in the fruits he has perceived but in those he could have perceived; at §9 that a just title accompanied by possession and good faith protects the holder in the enjoyment of the fruits and obliges those who took them from him to deliver them, to the degree that even if he is afterwards defeated in the suit on the property he does not return the fruits so perceived, especially if they are industrial — 'quales Yo pienso ser los de las Encomiendas, pues se dán por las cargas, obligaciones, y servicios anexos à ellas'; at §10 that because the litis contestatio begins to put such possessors in bad faith, condemnation in the fruits from that day is regularly made in these suits, that the judge may make it ex officio though it be not asked, and that in restitutory suits the condemnation runs not from the condemnation but from the day of the occupation, or from the day fixed for the enjoyment, without need of further petition or interpellation; at §11 that the same reading holds wherever the title or ground of the condemnatory sentence originated in a cause held for none or annulled as unjust; and at §12 the falencias and excuses by which a possessor who had just occasion to litigate and good faith in not yielding may escape condemnation in the fruits, 'aunque essa buena fee se aya causado de titulos invalidos, injustos, ò temerarios, o de error de Derecho, que aunque no pudiera bastar, ni aprovechar para prescribir, aprovecha para escusar la dicha restitucion' · primary