It may happen that a person discover among his legitimately acquired possessions something that does not in reality belong to him. He may have come by it through purchase, donation, etc.; he kept it in good faith, thinking that he had a clear title to it. He now finds that there was an error somewhere, and that it is the property of some one else. Of course, he is not the lawful owner, and does not become such by virtue of his good faith; although, in certain given circumstances, if the good faith, or ignorance of error, last long enough, a title may be acquired by prescription, and the possessor become the lawful owner. But we are not considering the question of prescription.
It is evident, then, that our friend must dispossess himself in favor of the real owner, as soon as the latter comes upon the scene and proves his claim. But the possessor may in all innocence have alienated the goods, destroyed or consumed them; or they may have perished through accident or fatality. In the latter case, nothing remains to refund, no one is to blame, and the owner must bear the loss. Even in the former case, if the holder can say in conscience that he in nowise became richer by the possession and use of the goods in question, he is not bound to make restitution. If, however, there be considerable profits, they rightly belong to the owner, and the possessor must refund the same.
But the question arises as to how the holder is to be compensated for the expenditure made in the beginning and in good faith when he purchased the goods which he is now obliged to hand over to another. Impartial justice demands that when the rightful owner claims his goods, the holder relinquish them, and he may take what he gets, even if it be nothing. He might claim a compensation if he purchased what he knew to be another’s property, acting in the interests of that other and with the intention of returning the same to its owner. Otherwise, his claim is against the one from whom he obtained the article, and not against him to whom he is obliged to turn it over.
He may, if he be shrewd enough, anticipate the serving of the owner’s claim and secure himself against a possible loss by selling back for a consideration the goods in question to the one from whom he bought them. But this cannot be done after the claim is presented; besides, this proceeding must not render it impossible for the owner to recover his property; and he must be notified as to the whereabouts of said property. This manoeuvre works injustice unto no one. The owner stands in the same relation to his property as formerly; the subsequent holder assumes an obligation that was always his, to refund the goods or their value, with recourse against the antecedent seller.
The moment a person shirks the responsibility of refunding the possessions, by him legitimately acquired, but belonging rightfully to another, that person becomes a possessor in bad faith and stands towards the rightful owner in the position of a thief. Not in a thousand years will he be able to prescribe a just title to the goods. The burden of restitution will forever remain on him; if the goods perish, no matter how, he must make good the loss to the owner. He must also disburse the sum total of profits gathered from the illegal use of said goods. If values fluctuate during the interval of criminal possession, he must compute the amount of his debt according to the values that prevailed at the time the lawful owner would have disposed of his goods, had he retained possession.
Finally, there may be a doubt as to whether the object I possess is rightfully mine or not. I must do my best to solve that doubt and clear the title to ownership. If I fail, I may consider the object mine and may use it as such. If the owner turn up after the prescribed time, so much the worse for the owner. An uncertainty may exist, not as to my proprietorship, but as to whom the thing does belong. If my possession began in good faith and I am unable to determine the ownership, I may consider myself the owner until further developments shed more light on the matter.
It is different when the object was originally acquired in bad faith. In such a case, first, the ill- gotten goods can never be mine; then, there is no sanction in reason, conscience or law for the conduct of those who run immediately to the first charitable institution and leave there their conscience money; or who have masses said for the repose of the souls of those who have been defrauded, before they are dead at all perhaps. My first care must be to locate the victim; or, if he be certainly deceased or evidently beyond reach, the heirs of the victim of my fraud. When all means fail and I am unable to find either the owner or his heirs, then, and not till then, may I dispose of the goods in question. I must assume in such a contingency as this, that the will of the owner would be to expend the sum on the most worthy cause; and that is charity. The only choice then that remains with me is, what hospital, asylum or other enterprise of charity is to profit by my sins, since I myself cannot be a gainer in the premises.
It might be well to remark here that one is not obliged to make restitution for more than the damages call for. Earnestness is a good sign, but it should not blind us or drive us to an excess of zeal detrimental to our own lawful interests. When there is a reasonable and insolvable doubt as to the amount of reparation to be made, it is just that such a doubt favor us. If we are not sure if it be a little more or a little less, the value we are to refund, we may benefit by the uncertainty and make the burden we assume as light as in all reason it can be made. And even if we should happen to err on the side of mercy to ourselves, without our fault, justice is satisfied, being fallible like all things human.