ENACTMENTS OF JUSTINIAN.
THE DIGEST OR PANDECTS.
|~ Book X ~|
( S. P. Scott, The Civil Law, IV, Cincinnati, 1932 ).
1. Paulus, On the Edict, Book XXIII.
The action for the establishment of boundaries is a personal one; although it is a proceeding for the recovery of property.
2. Ulpianus, On the Edict, Book XIX.
This action has reference to rustic estates, even though buildings are situated between them; for it does not make much difference whether a party plants trees, or erects a building on the boundary line.
(1) A judge is permitted in the case of establishment of boundaries to decide the controversy as seems to him best where he cannot fix the boundaries; and if the judge, for the purpose of removing a doubt of ancient origin chooses to direct the boundaries to be established in a new direction, he can do so in this way, and order a sum of money to be paid by way of compensation.
3. Gaius, On the Provincial Edict, Book VII.
In any case in which it is necessary that a decision should be made giving the land of one of the parties to the other, the one in whose favor the decision is rendered shall be required to pay to the other a certain sum of money by way of compensation.
4. Paulus, On the Edict, Book XXIII.
Where a controversy exists with reference to a certain piece of real-estate the land can be divided into shares by means of a decree, in accordance with what the judge finds to be the interest of the parties in said land.
(1) In a suit for the establishment of boundaries an account must be taken of the interest of the parties; for example, where anyone obtains some benefit from a tract of land which is ascertained to belong to a neighbor, would it be unjust that payment should be required on that account? Moreover, if a surveyor had been employed by one of the parties, the other who did not employ him would be obliged to pay his share of the compensation.
(2) After issue has been joined in a case, account is taken of the profits, for from that time negligence and malice must be made the subject of investigation, but whatever is collected before issue is joined will not, under any circumstances, be considered, for either the party collected it in good faith, and he should be allowed the benefit of it if he has consumed it; or, if he collected it in bad faith, an action must be brought against him for its recovery.
(3) Where, however, anyone refuses to obey the judge by cutting down a tree, or removing a building erected on the boundary, or on some portion of it, he will be required to make payment.
(4) Where landmarks are alleged to have been thrown down or dug up; the judge who has jurisdiction can hear an application to establish the boundaries also.
(5) Where one tract of land belongs to two persons and another to three; the court can adjudge the tract which is in dispute to one side, even though it includes several owners, since where the boundaries of land are established, this is understood to be done rather for the benefit of an estate than for that of a person; in this instance, however, since the decision was for the benefit of several parties, each one will be entitled to the same share which he has in the estate, and which will be held in common.
(6) Those who have shares in the common estate will not be liable to payment to one another, for no judicial controversy appears to have arisen between them.
(7) If you and I have an estate in common, and I alone own an adjoining tract of land, can legal proceedings be taken by us for the establishment of boundaries? Pomponius states that there cannot, because my joint-owner and myself cannot be adversaries in an. action of this kind, but we are considered to occupy the place of one person. Pomponius also says that even an equitable action cannot be granted, as the party who holds property in his own right can alienate either what he held jointly or severally, and then institute proceedings.
(8) An action can be brought for the establishment of boundaries not only between two estates, but even among three or more, as for instance, where one estate and several others, even as many as three or four, are contiguous.
(9) An action for the establishment of boundaries can be brought where lands are subject to perpetual lease; or between persons who have usufructs in the different tracts; or between an usufructuary and a mere owner of adjoining land; or between parties who have possession on account of real property given by way of pledge.
(10) This action is available where the boundary is between rustic estates; it does not, however, apply in the case of urban estates; for in the latter instance, the parties are not persons who have the same boundary, but they are rather said to be neighbors, and their estates are, for the most part, separated by common walls. Therefore, where buildings are adjoining, even in the country, there is no ground for this action; and, on the other hand, in a city there may be gardens which are contiguous, so that here also an action can be brought for the establishment of boundaries.
(11) Where a river or a highway intervenes, it is not understood to be a boundary; hence no suit can be brought for the establishment of a boundary.
5. The Same, On Sabinus, Book XV.
Because the highway or the river constitutes my boundary, rather than the land of my neighbor.
6. The Same, On the Edict, Book XXIII.
But if a private stream intervenes, an action for the establishment of boundaries can be brought.
7. Modestinus, Pandects, Book X.
Arbiters are appointed to determine the dimensions of land; and he who is stated to have a larger part of the entire tract will be compelled to transfer a certain portion to the others who have smaller ones; and this is stated in a rescript.
8. Ulpianus, Opinions, Book VI.
Where an inundation destroys the boundaries of a field by the overflow of the water, so as to afford an opportunity to any person to seize places over which they have no right; the Governor of the province must order that they shall not interfere with the property of others, and that the land of the owner shall be restored to him, and the boundaries be fixed by a surveyor.
(1) It is part of the duty of the magistrate in a case involving the boundaries of land to send surveyors, and by means of them dispose of the question of boundaries in accordance with justice, and by examination with his own eyes, if occasion demands It.
9. Julianus, Digest, Book VIII.
The case for the establishment of boundaries remains for hearing, even though the common owners may have brought an action for partition, or have sold the land.
10. The Same, Digest, Book LI.
An action for partition among joint-owners or heirs, or one for the establishment of boundaries is of such a nature that each individual party has the double right of both plaintiff and defendant in the action.
11. Papinianus, Opinions, Book II.
With reference to inquiries as to boundaries, the ancient memorials, and the authority of the census which had been taken before the suit was brought, must be followed; provided it is proved that no changes have resulted through a number of successions, and by the arbitrary acts of possessors tracts of land have been either added or taken away, and the boundaries subsequently altered.
12. Paulus, Opinions, Book III.
In a question relating to ownership, attention must be paid to those boundaries which a person who was the owner of both tracts designated when he sold one of them; for it is not necessary that the boundaries which formerly separated the two different tracts should be observed, but the descriptions of the adjoining owners must be used to establish the new boundaries between the said tracts of land.
13. Gaius, On the Law of the Twelve Tables, Book IV.
should be remembered that in the action for the establishment of boundaries
the rule must be observed which, to a certain extent, coincides with
the plan of the one which Solon is said to have passed at Athens,
which is as follows: "Where a party builds a wall adjoining the
land of another, he must not go beyond the boundary; if it is a wall
built of masonry, he must leave a foot; if it is a house, two feet.
If he digs a grave or a ditch, he must leave an open space equal in
width to the depth of the same; if a well, the width of a pace. If
he plants an olive or a fig-tree, he must place it nine feet from
the adjoining land, and in the case of other trees he must leave five
This action is derived from the Law of the Twelve Tables, for it was considered necessary, where co-heirs desired to relinquish ownership in common, that some kind of action should be established by which the property of the estate might be distributed among them.
(1) This action, in fact, can be brought directly by a party who is not in possession of his share. Where, however, he who is in possession of the estate denies that the plaintiff is his co-heir, he can bar him by an exception stated as follows: "If the inheritance is not prejudiced with reference to the matter in question." If the party possesses his share, even though it may be denied that he is a co-heir, an exception of this kind will not be a bar; the result of which is that, in this instance, the judge himself who hears the case must determine whether the party is a co-heir or not; for if he is not, nothing will be adjudged to him, nor will his adversary be required to make him any payment.
2. Ulpianus, On the Edict, Book XIX.
By means of the action for the partition of an estate the latter can be divided whether it is derived from a will or passes by intestacy, and whether the estate is granted by the Law of the Twelve Tables, or by some other law, or by a Decree of the Senate, or even by an Imperial Constitution. Generally speaking, an estate can be divided only between those after whose death an action to recover it can be brought.
(1) If a fourth of the estate is coming to anyone who was arrogated in accordance with the Constitution of the Divine Pius, then, because a party of this kind does not become either an heir or the possessor of the property, a praetorian action will be necessary for the partition of the estate.
(2) Moreover, if the peculium of the son of a family who is a soldier is in question, it can be forcibly asserted that an estate is created by the Imperial Constitutions, and therefore this action will be available.
(3) In an action for the partition of an estate, each of the heirs takes the part of both defendant and plaintiff.
(4) Again it cannot be doubted that an action for the partition of an estate can be maintained where only a few heirs out of many institute proceedings.
(5) Although claims are not considered in this action, nevertheless, if stipulations had been entered into with reference to the division of the same, so that it is settled that each party shall assign rights of action to the other and appoint him agent for the transaction of his business, the division shall be adhered to.
3. Gaius, On the Provincial Edict, Book VII.
It is evident that it sometimes becomes the duty of the judge to see that different debts and claims are assigned to different heirs in severalty, because it often occurs that the payment or collection of debts to be apportioned among different shares causes no small degree of inconvenience. Still, this assignment does not always have the effect of rendering a single heir liable for the entire indebtedness, or of giving him the right to collect all of it, but the result merely is that if proceedings are instituted, the heir brings them partly in his own name and partly in the capacity of agent; or, where an action is brought against him, he is sued partly in his own name and partly as agent. Although the creditors are fully empowered to bring suit against each individual heir; the latter still have a perfect right to substitute in their places such parties as the order of the court indicates should sustain the burden of the action.
4. Ulpianus, On the Edict, Book XIX.
Therefore everything except pecuniary claims are included in this proceeding. But if a pecuniary claim is bequeathed to one of several heirs, the said heir can obtain it by a suit for partition of the estate.
(1) Noxious drugs and poisons are embraced in this action; but the judge ought by no means to interfere in matters of this description, for it is his duty to perform the functions of a good and innocent man. He should act in the same manner with reference to books which it is improper to read (for instance, those treating of magic and similar subjects); all of these, however, should be immediately destroyed.
(2) Moreover, where anything has been acquired by peculation or sacrilege, or by violence, theft, or aggression, it shall not be divided.
(3) The judge should order the will to be placed in the hands of him who is heir to the greater portion of the estate, or to be deposited in a temple. Labeo says that where the estate is sold, a copy of the will should be deposited, and that the heir should furnish a copy, but he himself ought to keep the original will or deposit it in the temple.
5. Gaius, On the Provincial Edict, Book VII.
Where any inheritable obligations are included in the property of the estate, the judge should take care that they remain in the possession of the party who is heir to the largest share; the others are entitled to copies which must be verified, and a bond shall be executed by the said heir to the effect that the original documents will be produced when occasion requires this to be done. Where all the heirs are entitled to equal shares, and no agreement is made between them with reference to the party with whom the instruments are to be left, they must cast lots, or a friend should be chosen by common consent or by vote with whom they may be deposited, or they must be placed for safe keeping in some consecrated temple.
6. Ulpianus, On the Edict, Book XIX.
The settlement of the matter by submitting it to competition, so that the party who makes the highest bid shall be entitled to possession of the obligations, belonging to the estate, is not approved by either Pomponius, or by myself.
7. Venuleius, Stipulations, Book VII.
If an heir, in an instance where a co-heir was added under a condition, or is in the hands of the enemy, should assert that he himself is the heir, and having brought an action should gain it, and afterwards the condition upon which the inheritance of the other heir depended is fulfilled, or the latter returns by postliminium; ought the other heir to share with him the advantages of his victory? He is undoubtedly entitled to an action to enforce judgment for the entire amount. In this case the co-heir should be granted his choice, that is to say, he must either be given a share of the estate or he must have the power to institute proceedings, for he is one who became an heir, or returned to the city, after his co-heir had been successful. The same rule must be observed where a posthumous child is born. These parties are not to blame on account of their silence, since they only obtained a right to the estate after their co-heir had won his case.
8. Ulpianus, On the Edict, Book XIX.
Pomponius says that where accounts are bequeathed as a preferred legacy to one of several heirs, they must not be delivered to him before his co-heirs have taken copies of the same. For, he says, suppose a slave who is a steward was bequeathed, he should not be delivered until he has rendered his accounts. We should consider whether a bond ought not to be executed providing that whenever the accounts are required, or the said steward bequeathed, they shall be produced; as it is frequently necessary that the original accounts and the steward himself should be produced in court for the explanation of matters which subsequently arise and in which the knowledge of the steward is involved; and it is necessary that a bond should be furnished the co-heir in this matter by the heir aforesaid.
(1) Pomponius also states that pigeons which are accustomed to leave the pigeon-house are included in the action for the partition of an estate, because they are our property as long as they have the custom of returning to us; and therefore if anyone should seize them, we are entitled to an action for theft. The same rule applies to bees, because they are part of our property.
(2) Moreover, where one of our cattle is carried off by wild beasts, Pomponius thinks that if it escapes from said beasts it is to be included in the action for the partition of an estate; for he says it is the better opinion that, where anything is carried off by a wolf or any other wild beast, it does not cease to be ours so long as it is not devoured.
9. Paulus, On the Edict, Book XXIII.
This action also includes property which the heirs have acquired by usucaption, in instances where it was delivered to the deceased, and also property which was delivered to the heirs, and which the deceased had purchased.
10. Ulpianus, On the Edict, Book XIX.
Also real property which belongs to our patrimony as well as land held by perpetual lease, or such as relates merely to the surface. Property of which the deceased had possession in good faith, even although it belonged to another, likewise comes under this rule.
11. Paulus, On the Edict, Book XXIII.
The child of a female slave, if it is born after the estate has been entered upon,
12. Ulpianus, On the Edict, Book XIX.
And even after issue had been joined can, as Sabinus states, be included in an action for the partition of an estate, and be made the subject of adjudication.
(1) The same principle will apply where anything is given by a stranger to slaves forming a portion of the assets of an estate.
(2) Property bequeathed under a condition in the meantime belongs to the heirs, and is therefore included in the action for the partition of an estate, and can be made the subject of adjudication; subject of course, to the restrictions attaching to the same, so that if the condition is fulfilled it will be taken away from the party to whom it was adjudged; or, upon failure of the condition, it will revert to those charged with the bequest. The same rule applies in the case of a slave who is to be liberated on a condition, for in the meantime he belongs to the heirs, but when the condition has been fulfilled he obtains his freedom.
13. Papinianus, Questions, Book VII.
Disposal of property after issue has been joined is forbidden, but this only applies to such as is voluntary, and not to such as becomes necessary through some former liability and originates in some legal requirement.
14. Ulpianus, On the Edict, Book XIX.
But where the right of usucaption has begun to run before issue is joined in favor of a party who is not an heir, and is subsequently completed, this removes the property from the case.
(1) The question arises whether an usufruct is embraced in the action; as, for example, where an usufruct was reserved and the land left to others than the heir:
15. Paulus, On the Edict, Book XXIII.
Or where an usufruct was bequeathed to a slave belonging to the estate; as an usufruct cannot depart from the party in interest without being lost.
16. Ulpianus, On the Edict, Book XIX.
I think that it is part of the duty of the judge that, if the heirs should wish to relinquish their common ownership of the usufruct, he should accede to their wishes after causing them to give security to one another.
(1) Julianus says that where a Court adjudges the land to one heir and the usufruct of the same to another, the usufruct does not become common property.
(2) An usufruct can be adjudged from a certain time, or until a certain time, or for alternate years.
(3) Land which a river adds by alluvium to an estate after issue is joined is also included in an action of this kind.
(4) Where, however, an act has been committed maliciously or negligently by one of the heirs whose effect is to diminish the value of the usufruct, Pomponius says that this likewise comes within the scope of the action; for everything which an heir maliciously or negligently does to the damage of the estate will be considered in all actions for partition of the same, provided always that he commits the act in the capacity of heir. Therefore, if one of the heirs deprived the testator of money during his lifetime, this will not be included in the action for partition of the estate, because he was not yet an heir; but where he acted as an heir, even though the party interested should be entitled to some other action, nevertheless, as Julianus states, he is liable to a suit for partition of the estate.
(5) Finally, he says that if any one of the heirs should destroy accounts belonging to the estate or falsify them, he will be liable under the Lex Aquilia for destroying the same, and he will also be liable to an action for partition of the estate.
(6) Moreover, where a slave who belongs to an estate steals the property of one of the heirs, Ofilius says that an action for partition of the estate will lie, as well as one for the partition of property held in common, but an action for theft cannot be brought; and hence if the heir brings an action for partition of the estate he will obtain a judgment by which the slave will be given to him, or the damages assessed, that is to say simple damages will be granted him.
17. Gaius, On the Provincial Edict, Book VII.
Where an injury is committed by one of the heirs, it is proper to state that simple damages should be considered in the action for partition of the estate.
18. Ulpianus, On the Edict, Book XIX.
In accordance with these rules, Julianus says that where there are several heirs, and a slave is left to one of them, in general terms, with the right of selection, and the remaining heirs allege that Stichus has falsified the will or defaced it, and they make this statement in order to avoid a slave being chosen; and then, after he has been chosen an action is brought to recover him, they can, if they are sued, avail themselves of an exception on the ground of malicious fraud and subject the slave to torture.
(1) The question arises whether in an action for the partition of an estate the heirs have a right to use torture with reference to the death of the testator, or to that of his wife and children; and Pomponius very properly says that these things have no reference whatever to the division of the assets of the estate.
(2) He also says that where anyone provides by will that a slave shall be sold in order to be transported to a distance, it is the duty of the judge to see that the wishes of the deceased shall not be thwarted. But where the testator ordered that a monument should be erected, an action for the partition of an estate can be brought to compel this to be done. He suggests, however, that since it is to the interest of the heirs — as they will have a right in the monument — any one of them can institute proceedings in express terms to have a monument erected.
(3) Where one of the heirs incurs expenses in good faith, he can collect interest from a co-heir from the time of his default, in accordance with a Rescript of the Emperors Severus and Antoninus.
(4) Celsus also very appropriately adds that a co-heir, even if he does not make payment himself, nevertheless, is entitled to an action for partition of the estate to compel his co-heir to pay his share; as, otherwise, the creditor will not relinquish a certain piece of property unless he is paid in full.
(5) Where the son of a family was his father's heir to a share of the estate and was sued by creditors for his peculium, he being prepared to pay all that was due, he can, by means of an exception on the ground of malicious fraud, compel the creditors to assign their rights of action to him; and he is, in addition, entitled to an action for the partition of an estate against his co-heirs.
(6) Where one of the heirs has paid a legacy to a party who is directed by the court to take possession for the purpose of preserving legacies; Papinianus thinks, and his opinion is correct, that he is entitled to an action for the partition of the estate against his co-heirs; because the legatee would not otherwise give up the possession which he had once obtained, it being equivalent to security, until the entire legacy was paid to him.
(7) Moreover, if anyone should pay a debt to Titius to avoid the sale of a pledge, Neratius states that he can institute proceedings for partition of the estate.
19. Gaius, On the Provincial Edict, Book VII.
Again, on the other hand, the judge ought to provide in like manner that, where one of the heirs has pecuniarily profited by the property of the estate, or has entered into a stipulation to its disadvantage, he shall not be the only one to be benefited. The judge can accomplish this by either causing accounts to be rendered by the different heirs, or by causing them to give security to one another by means of which the profits and losses will be equally divided between them.
20. Ulpianus, On the Edict, Book XIX.
Where a married daughter who was obliged to bring her dowry into the common fund, through an error of her co-heirs gave a bond that she would pay them in proportion to their shares whatever she recovered from her husband; Papinianus says that, notwithstanding this, the arbiter in the action for partition must decide that even if she herself should die while the marriage existed the dowry must be contributed; for ignorance of the co-heirs can not change the rules which govern legal proceedings.
(1) Where the son of a family has become liable to an obligation by order of his father, he must reserve the amount out of the assets to pay the debt; and, moreover, if he has expended money on property belonging to his father, the same rule will apply, and if the action is de peculio he will reserve the peculium for the same purpose; and this our Emperor stated in the Rescript.
(2) In addition to this, where the son of a family is appointed heir, he can reserve the dowry of his wife; nor is this unreasonable, since he must sustain the pecuniary burdens of matrimony. Therefore, he can retain the entire dowry, and must furnish security that he will defend his co-heirs who may be sued on the stipulation. The same rule applies where another party gave the dowry and entered into the stipulation. This is applicable not only to the dowry of his own wife, but also to that of his son's wife, since this also has reference to the expenses of matrimony for which he is responsible: because he is required to be liable for the expenses of his son and daughter-in-law. Marcellus says that the son must retain the dowry, not only where it was given to his father but also where it was given to himself, as his son; to the extent that it was given to him as being included in his peculium, or where it was expended for the benefit of his father.
(3) Where a father divides his property among his sons without any writing, and distributes the burden of his debts among them in proportion to what they possess; Papinianus says that this should not be considered a simple gift, but rather a division of property under a last will. It is clear, he says, that if the creditors bring suit against said heirs in proportion to their shares in the estate, and one of them refuses to abide by what was agreed upon, an action can be brought against him on special grounds, alleging that they made an exchange under a certain agreement; of course if all the property was divided.
(4) The action for the partition of an estate cannot be brought more than once, unless proper cause is shown; because if any property is left undivided, an action can be brought for its distribution.
(5) Papinianus says that if one of the heirs is required to pay a debt without this being provided for by way of a legacy; then the heir will be forced to assume payment by the judge presiding in the action for partition of the estate, but not for a greater amount than three quarters of his share, so that he may have one quarter undiminished; and therefore he must provide security to protect his co-heirs.
(6) He also says that if a son is liable for expenses which he has incurred on account of a public office that his father consented for him to administer, and is then appointed heir to a share of the estate, he can reserve the amount which he owes, because this was one of his father's debts; but where he administered any offices after the death of his father, the heirs of the latter will not be liable for any obligations incurred with reference to said offices.
(7) Neratius, however, gave it as his opinion that where a man who had several sons consented that one of them should undertake the office of the functionary who has charge of arranging and regulating public games, and, before he perform the duties of the office, his father should die, after having appointed all his sons his heirs; the question arises whether the said son could, by an action for partition of the estate recover what he had expended in the matter; and he answered he could not recover it by any action. This opinion is not accepted, and very justly, for the expense should be included in the action for partition of the estate.
(8) Papinianus also says that if a husband orders one of his heirs to assume the burden of paying the dowry, which is included in a stipulation, and his widow brings suit for her dowry against both heirs, the heir who was ordered to assume the burden must defend his coheir in the action. But where both heirs are charged with the payment of legacies instead of the dowry, and the widow elects to receive the dowry, the legacies are retained by said heirs, but this must not be for the benefit of the co-heir who is released from payment of the debt; that is to say, the co-heir who assumed the burden of the debt, should, by order of the court, obtain the legacy; and this is true unless the testator provided otherwise.
(9) He also says that where a slave who is to be liberated on a condition pays money out of his peculium to one of several co-heirs, for the purpose of fulfilling the condition, it will not be included in this action, and should not be subject to contribution.
21. Paulus, On the Edict, Book XXIII.
The same rule applies in the case of an action brought for the partition of property held in common.
22. Ulpianus, On the Edict, Book XIX.
Moreover, Labeo says that if one of the heirs digs up any treasure which the testator left, he will be liable to an action for partition, just as if he had divided the treasure with a stranger who was aware of the fact.
(1) The judge in an action for the partition of an estate can adjudge the same property to several parties only where the right to have one thing was left to several persons; (or where, as Pomponius says, the necessity existed that the shares should be adjudged to several persons); or where the judge assigns a certain part of the property to each of the co-heirs; he can, however, adjudge the property to one heir after it has been bid for by all.
(2) Moreover, no one doubts that he can adjudge land that has been divided in accordance with the distribution which has already taken place.
(3) Again, when he makes these adjudications he can impose a servitude so as to make one tract which he assigned serve another; and if he absolutely adjudges a tract to one heir, he cannot, in assigning another, impose a servitude upon the first one.
(4) An action for the partition of an estate has reference to two matters; that is to say, the property, and delivery of the same, these being personal actions.
(5) Papinianus criticizes Marcellus for his opinion concerning property held by the enemy, because he does not think that transfers of property of this kind are included in the action for the partition of an estate. For how can there be any impediment to an action for the transfer of property when the very property itself is included,
23. Paulus, On the Edict, Book XXIII.
On account of the hope of postliminium? Of course a bond should be given, because the party might not return; unless there was only an estimate made of an event that was uncertain.
24. Ulpianus, On the Edict, Book XIX.
Where, however, property has ceased to be in existence, the question of transfer may still arise; and I agree with Papinianus.
(1) The action for partition applies to the possessors of the property of an estate, and also to a party to whom an estate has been restored in accordance with the Trebellian Decree of the Senate, and to other praetorian successors.
25. Paulus, On the Edict, Book XXIII.
The heirs of a person who died in the hands of the enemy can bring this suit.
(1) Where a soldier makes one person an heir to his castrensian property and another an heir to the remainder of his estate, there is no ground for an action for partition; since the property will be divided between the heirs according to the Imperial Constitution, just as a suit for the partition of an estate cannot be brought where there is no corporeal property, but the assets all consist of claims.
(2) With reference to the point as to whether a party is entitled to undertake the defence in an action for partition, it makes no difference whether he has possession of the estate or not.
(3) Where several estates are held in common by different persons under different titles, a single action in partition can be brought.
(4) Where the Titian estate is held in common by you and me, and that of the estate of Seius is held by you and Titius and myself, Pomponius says that one action can be brought to which all three persons will be parties.
(5) Moreover, where several estates are held by us in common, we can proceed by an action for partition with reference to one of them alone.
(6) Where a testator holds property in common with a stranger, or bequeathed to anyone a portion of his property; or his heir, before joinder of issue in an action for partition, alienated his own share; it is the duty of the judge to order that the share which was the property of the testator should be transferred to some one.
(7) Where a co-heir has possession of property as a purchaser, or, for instance, has received it as a gift; Pomponius denies that it can be included in an action for partition of the estate.
(8) He also says if you and I become the heirs of Titius, and you bring an action against Sempronius for a portion of a tract of land all of which you say is included in the estate, and you are defeated; and I then purchase the same share from Sempronius and it is transferred to me, and you bring an action for partition, this will not only not include what I am in possession of as heir, but will not even embrace what I hold as purchaser; for, as it was evident by the former decree that the entire tract of land was not included in the estate, how could it be included in a suit for the partition of the latter?
(9) It is doubtful whether a stipulation, the terms of which give each heir a right of action for the entire amount, is included in a suit of this kind; as for instance, where a party dies after having stipulated for a right of way, a path or a driveway, for the reason that a stipulation of this kind according to the Law of the Twelve Tables is not permitted to be divided, because this cannot be done. The better opinion, however, is that it is not included in the action, but that all the heirs have a right to bring suit for the entire amount; and if the right of way is not furnished, the decision against the defendant should be for a sum of money in proportion to the share of the plaintiff in the estate.
(10) On the other hand, where a person who promises a right of way dies after having appointed several heirs, the obligation is not divided; and there is no doubt that it continues to exist, since a party can promise a right of way who has no land. Therefore, since each individual heir is liable for the whole, it is the duty of the judge to require bonds to be furnished, so that if any one of the heirs should be sued and pay the damages assessed by the Court, he can recover a portion of the amount from the others.
(11) The same rule applies where a testator bequeaths a right of way.
(12) In the case of a different stipulation also, where a testator promised that nothing should be done by him or by his heir to prevent the other party from walking or driving, since, if one co-heir should prevent this a suit for the entire amount can be brought under the stipulation, the interests of the co-heir must be protected to prevent the act of one of them being prejudicial to the others.
(13) The same rule of law applies to a sum of money promised by a testator, if it was promised under a penalty; for although this obligation may, according to the Law of the Twelve Tables, be divided; still, for one party to pay his share will not in any way contribute to the avoidance of the penalty, yet, if the money has not been paid, or is not due, recourse must be had to a bond, so that provision may be made for the indemnity of the others by the party who is to blame for all the money not being paid; or each one must give security that he will make good a part to whoever pays the whole amount; or where one of the heirs pays the entire sum promised by the testator in order to prevent the penalty from attaching, he can recover from his co-heirs their shares of the same in an action for partition.
(14) The same rule is observed in the redemption of pledges, for unless a tender is made of the entire amount which is due, the creditor can legally sell the pledge.
(15) Where one of several co-heirs defends an hereditary slave in a noxal action, and tenders the amount of estimated damages, where this is expedient, he can by this action recover a part of what was paid. The same rule applies where one co-heir gives security with reference to legacies, to prevent the legatees from being placed in possession. And, generally speaking, where measures cannot be taken for a division, if one party should act under the force of necessity, there will be ground for an action in partition.
(16) A co-heir is responsible not only for malice but also for negligence committed with reference to the assets of an estate, since we do not contract with the co-heir but happen upon him accidentally; still, a co-heir is not obliged to be accountable for as much diligence as the careful head of a family would exercise, as he had good reason for acting on account of his own share; and therefore he would not be entitled to an action on the ground of business transacted, hence he must therefore employ the same diligence which he would display in his own affairs. It is the same where property is bequeathed to two legatees; for it was not their consent but the circumstances of the case which united them in ownership.
(17) Where a slave is bequeathed in indefinite terms and the legatee afterwards dies, and one of the heirs of said legatee, by not giving his consent, prevents the legacy from being paid, he who caused the hindrance shall be compelled, by means of this action, to pay to the others whatever the interest of each amounts to. The same rule applies where, on the other hand, one of the heirs at whose charge a slave has been bequeathed in general terms, being such a one as they themselves might select, is unwilling to consent that a slave should be delivered whom it would be beneficial to all to have thus disposed of, and, in consequence, the heirs are sued by the legatee and compelled to pay, by way of damages, a larger sum than the slave is worth.
(18) Moreover, a man is liable on account of negligence who, after he had entered upon an estate before others, suffered servitudes attached to lands belonging to the estate to be lost by want of use.
(19) Where a judgment is rendered against a son who was defending his father in a suit, and he pays the amount of the judgment either during the lifetime of his father or after his death; it can very properly be stated that he has a right to bring suit for recovery against his coheir in an action for partition.
(20) A judge who presides in an action for partition of an estate should leave nothing undivided.
(21) He must also provide that security be given to those to whom he awards the estate against recovery of the property by eviction.
(22) When money which is not left in the house is bequeathed to be taken before division, whether the co-heirs should pay the entire amount, or only what is in proportion to their shares in the estate; just as if the money had been left among the remaining property of the estate is a question with reference to which some doubt exists; but the better opinion is that what must be paid is the amount that would be paid if the money had been found.
26. Gaius, On the Provincial Edict, Book VII.
It is part of the duty of the judge to order one or more things belonging to the estate to be sold, and the proceeds of the sale to be paid to any person to whom said money was bequeathed.
27. Paulus, On the Edict, Book XXIII.
In this action judgment must be rendered against every party, or all must be discharged from liability; hence, if the decision is omitted with reference to any one whomsoever, what the judge does with reference to the others will not be valid; because a decision cannot be valid with respect to one part of the question at issue, and void with respect to another.
28. Gaius, On the Provincial Edict, Book VII.
Where a testator bequeaths property to be taken before division, which he has already pledged to a creditor; it is in the province of the judge to redeem it out of the common fund of the estate, and see that he to whom it was bequeathed in this way shall have it.
29. Paulus, On the Edict, Book IV.
Where property was given to the deceased by way of pledge, it must be said to be included in the action for partition of the estate; but he to whom it is awarded should be required to pay his co-heir for the same in proportion to his share of the estate in an action for partition; but he need not give security to his co-heir that he shall be indemnified with reference to the party who pledged the property; for the reason that the case will be the same as if an hypothecarian or Servian Action had been brought, and the estimated amount had been tendered; so that the party who made the tender may be protected by an exception against the owner bringing suit to recover the property. Again, on the other hand, if the heir to whom the pledge was adjudged desires to restore the whole, he should be heard, even though the debtor be unwilling. The same rule does not apply where the creditor purchases the other portion of the property pledged, because adjudication by the court is necessary, but the purchase is voluntary; unless the objection should be made that the creditor bid for the property too eagerly. The reason why this is taken into account is because what the creditor did must be considered as if the debtor had done it through an agent, and whatever necessary expenses the creditor incurred he has a right to recover in an action besides.
30. Modestinus, Opinions, Book VI.
I hold a tract of land in common with a female minor who is also my co-heir, and in said land remains are buried to which reverence is due from both of us; for the parents of the minor are buried there. Her guardians, however, desire to sell the land, but to this I do not consent, as I prefer to retain possession of my own share, since I cannot purchase it all, and I wish to discharge my duty to the dead in accordance with my own judgment. I ask whether I can legally petition for an arbiter in an action for the partition of said tract of land; or whether the arbiter who is appointed for the partition of an estate can discharge the functions of his office and also divide the said property between us according to the rights of each; the remaining assets of the estate being left out of consideration. Herennius Modestinus answered that there was nothing in what was proposed to hinder the party appointed arbiter in the action for the partition of the estate from including in his duties the matter of dividing the said tract of land; but religious places could not be brought into the action, as the rights with respect to them belong to the individual heirs interested in the entire estate.
31. Papinianus, Questions, Book VII.
Where a slave who is pledged is redeemed by one of the heirs, then, even if he should afterwards die, the office of the arbiter will, nevertheless, continue to exist; for there is sufficient reason for this on account of the joint ownership which previously existed and would have continued to exist up to this time, if the property had not been destroyed.
32. The Same, Opinions, Book II.
Property which a father has not divided among his children, after having given them rights of action instead of the division, belongs to said children in proportion to their respective shares in the estate, provided he did not give the property which he did not divide in general terms to one child; or it was not accessory to the property which was given.
33. The Same, Opinions, Book VII.
Where the father of a family, in devising land to his respective heirs, wished to act the part of an arbiter in the partition; one co-heir will not be compelled to surrender his share unless he obtains in return for the same a share which is free from the incumbrance of the pledge.
34. The Same, Opinions, Book VIII.
Where a valuation is placed upon slaves by co-heirs at the time of division, it has been held that prices are placed upon them not for the purpose of purchase, but for that of division; hence, if any of them dies while the condition is pending, the loss must be borne by both the heir and the beneficiary.
35. The Same, Opinions, Book XII.
Pomponius Philadelphus transferred certain tracts of land by way of dowry to a daughter who was under his control, and directed that the income of the same should be paid to his son-in-law. The question arose whether the daughter could retain the property as her own if her father appointed all his children heirs. I answered that she would have good cause to retain possession of the same, since her father wishes the land in question to be given by way of dowry, and that the marriage had continued even after the death of the father; for the case under consideration was that the daughter held possession of the property according to natural law by virtue of the dowry which she was capable of receiving.
36. Paulus, Questions, Book II.
I, being under the impression that you were my co-heir, although this was not true, brought an action for partition against you, and adjudications were made and orders issued by the Court, to make payment to both of us. I ask whether, when the truth of the facts is ascertained, a personal action will lie in favor of each of us, or one to recover the property; also whether one rule is to be adopted with reference to a party who is an heir, and another with reference to one which is not. I answered that where a person is heir to an entire estate and, thinking that Titius is his co-heir, joins issue with him in an action in partition, and a decision directing payment is rendered, he makes payment; then, since he did this in compliance with the decision of the judge, he cannot bring an action to recover the money. You, however, seem to hold that no action in partition can exist except between coheirs; but although the action is not legal, still, it is sufficient to prevent the suit to recover what the party believed he was obliged to pay. But, if neither of the parties was an heir, yet joined issue in an action for partition just as if they were heirs, the same rule for recovering the property which we previously stated applies to one of them must be said is applicable to both. It is evident that, if they divided the property without application to the court, it may be stated that the heir who thought the other party was his co-heir has a right of action for the transfer of the property delivered to the latter; for it cannot be held that there was any compromise between them since he believed him to be his co-heir.
37. Scaevola, Questions, Book XII.
A party who brings an action for the partition of an estate does not admit that his adversary is his co-heir.
38. Paulus, Opinions, Book III.
Lucius and Titia, who were brother and sister, having been emancipated by their father, when grown up had curators appointed for them, and the latter furnished them individually with money which was common property, having been obtained from the income of an estate. They subsequently divided the entire estate between them, and, after the division, Titia, the sister, instituted proceedings against her brother alleging that he had received more than she had; while, in fact, Lucius had not received more than his share, but even less than half the property. I ask whether Titia had a right of action against her brother? Paulus answered that: "In accordance with the statement of the case, if Lucius did not receive more from the income of the property held in common than he was entitled to on account of his share in the estate, his sister has no right of action against him." He gave the same answer in a case where it was alleged that a brother had received a larger amount for maintenance from the Praetor than his sister, but still not more than half.
39. Scaevola, Opinions, Book I.
Where a person was appointed heir to a share of an estate with reference to which an action had been brought against the heirs because they did not avenge the death of the testator, he gained his case, and the co-heir then brought suit to recover his share from the other heir, but refused to pay his allotment of the expense incurred in the defence of the other suit. The question arose whether he would be barred by an exception on the ground of fraud? I answered that if greater expenses had been incurred by reason of the defence which he had made for the benefit of the said co-heir himself, this expense must be taken into consideration; but if the other party did not plead an exception on the ground of fraud, he could bring suit for the recovery of part of the expenses.
(1) A man who died intestate divided all his land and other property among his children by means of codicils, in such a way that he left a great deal more to his son than to his daughter. The question arose whether the sister had a right to bring her dowry into the common fund for the benefit of the brother? I answered that, according to the statement of facts, if the testator left nothing undivided, the better opinion was that the right to bring the dowry into the common fund was removed by the wish of the testator.
(2) A testator granted freedom to a slave, who was fifteen years of age, when he should reach the age of thirty; and also indicated that he desired that there should be given him from the day of his death, as long as the slave lived, ten denarii for his food, and twenty-five denarii for his clothes. Stichus died before the day when he was to become free arrived, and the question arose whether the legacy relating to food and clothing was valid; and whether, if it was not valid, the heir who had paid it could recover it from his co-heir with whom the slave had lived? I answered that if the money had not been due, but if what had been given had been expended for food, it could not be recovered.
(3) A son who, after the death of his father, contracted debts due to the Government, cannot charge his brother with said debts in proportion to his share in the estate of his father, if the brothers are not partners in all their property; even though they held the estate of their father in common, and their father had discharged the duty of a magistrate where he resided in behalf of his other son.
(4) A testator appointed his two sons his heirs, and before distribution bequeathed certain slaves to each of them; among said slaves a certain Stephanus was left to one of the sons together with his peculium. The said slave, having been manumitted during the lifetime of the testator, died, and afterwards the father died. The question then arose whether what Stephanus had in his peculium before he was manumitted belonged to both sons, or only to the one to whom he had been previously bequeathed together with his peculium? I answered that, according to the statement of the case, it belonged to both.
(5) A father who divided his property between his sons and confirmed the division by his will, provided that any debt which either of them had contracted or should contract, he alone should be liable for the same. One of his sons having afterwards borrowed money, the father appeared, and with his consent the land which had been transferred to the said son was pledged for the debt, and after the death of the father the same son who was in possession of the land paid the interest, I ask whether, if the creditor should sell the land which was pledged, anything should be paid to this son by a co-heir if an action for partition of the estate should be brought? I answered that, in accordance with the facts stated, he would not be required to pay anything.
40. Gaius, Trusts, Book II.
Where anyone who is appointed heir to an entire estate is asked to deliver a certain portion of it to me, for instance, half; an equitable action for partition can properly be brought between us.
41. Paulus, Decrees, Book I.
A certain woman appealed from the decision of a judge because, as she stated, in an action for the partition of an estate between herself and the co-heir, he had divided not only the property but the freedmen also, as well as an obligation for maintenance directed by the testator to be furnished to certain freedmen; which, she alleged was something that he had no right to do. On the other hand, it was stated that the parties had agreed to the division, and had paid sums for maintenance in accordance with the terms of the division for many years. It was decided that they must abide by the provision for maintenance; but the judge added that the division of freedmen was of no effect.
42. Pomponius, On Sabinus, Book VI.
Where a legacy is bequeathed to one of several heirs in the following terms, "Let him retain what he owes me;" it is the duty the judge has in an action for partition to prevent the co-heirs from exacting payment from the heir aforesaid; but, where one heir is ordered to retain what another owes, it is the duty of the judge to require the rights of action to be assigned to him in proportion to the share of a co-heir in the estate.
43. Ulpianus, On Sabinus, Book XXX.
One person can petition for the appointment of an arbiter in an action for the partition of an estate; for it is clear that a single heir can appeal to a judge, and therefore one heir can petition for an arbiter, even though the others are present and do not give their consent.
44. Paulus, On Sabinus, Book VI.
Proceedings may be instituted for the partition of land held in common by co-heirs in such a way that only the property which is held in common and matters relating to it which are pending in court shall be included; but with reference to all other things the right of action for the partition of the estate remains unimpaired.
(1) Where an action for the partition of an estate or for the division of property held in common has been tried; the Praetor will sustain any decisions made by the Court by granting exceptions or actions.
(2) Where co-heirs have sold property while one of their number was absent, and in the transaction have managed fraudulently to obtain more than they were entitled to, they can be compelled to indemnify the party who was absent, either by an action for partition or by a suit for the estate.
(3) Any of the profits which an heir takes from the funds of an estate before it has been entered upon, Julianus says he will not have to surrender in an action for partition; unless when he took the same he knew that the land belonged to the estate.
(4) Parties who bring actions for the partition of an estate, or for the division of common property, or for the establishment of boundaries are both plaintiffs and defendants; and therefore they must swear that they have not instituted proceedings for the purpose of annoyance, and do not make a defence with the intention of causing unnecessary trouble.
(5) Where one of several co-heirs, on account of a stipulation relating to the estate, makes a payment through his own act, he cannot recover the amount from his co-heir; as, for instance, where the deceased promised that no malicious fraud should be committed by himself or by his heir, and that nothing should be done either by himself or by his heir which would prevent anyone from walking or driving over a road; and, in fact, even where the remaining heirs became liable through the act of one, for the reason that the condition of a stipulation relating to the estate is fulfilled, they will be entitled to an action for the partition of the estate against the party through whom the stipulation became operative.
(6) Where anyone stipulates that Titius and his heir shall ratify some act of his, and Titius dies leaving several heirs, he alone will be liable who neglected ratification; and, among the heirs of the party stipulating, he alone who has been sued can institute proceedings to enforce the liability.
(7) Where an usufruct is bequeathed to a widow "until her dowry shall be paid to her;" then, Cassius says that whatever is paid to her by way of dowry on behalf of a co-heir can be recovered by order of the arbiter in an action for partition, and the co-heir can be made to pay his share of the dowry; and this opinion is correct.
(8) Where two co-heirs have been charged to erect a statue, and one of them neglects to do so but the other erects it; Julianus says that it is not unjust to grant an action in partition, so that a part of the expenses may be paid, the amount of which would be approved by a good citizen.
45. Pomponius, On Sabinus, Book XIII.
Where you contend that part of an estate is owned by yourself and me in common, which I, for some other reason, declare to be mine alone; this is not included in the action for the partition of an estate.
(1) Fraud committed by a slave of the heir does not come within the terms of the action for the partition of an estate, unless there was negligence on the part of the owner of the slave in that he employed a slave which was not trustworthy to take care of the common property.
46. Paulus, On Sabinus, Book VII.
Where a husband is appointed heir by his father under a certain condition, in the meantime the right of action for the dowry of the wife is in abeyance; for it is evident that if a divorce should take place after the death of her father-in-law although at a time when the condition of the appointment of the party as heir was still pending, it must be held that there is ground for the retention of the dowry; because, when the father dies, some things pass to the sons even before they become heirs, such as matters relating to marriage, children and guardianship. Therefore, a son who bore the expenses of matrimony after his father's death can take the dowry before division; and this was held by our Scaevola.
47. Pomponius, On Sabinus, Book XXI
In an action for the partition of an estate or for the division of property held in common, if, while the case is pending, a controversy arises concerning a right attaching to the land, it is established that all those with reference to whom the arbiter has been appointed can both bring suit and give notice of a new structure, each one in proportion to his respective interest in the property; and when an award is made by the arbiter, if the entire tract of land is adjudged to one party, security must be furnished that whatever is recovered by means of the actions must be delivered, and whatever expenses have been incurred on their account must be paid. And if, while the matter was in court, no proceedings were instituted with reference to the said land, the unimpaired right of action shall belong to him to whom the entire tract has been awarded, or in proportion to the share for which the award was made.
(1) Moreover, where there is any movable property which can be included in said actions, and in the meantime it should be stolen, proceedings for theft can be brought by the parties at whose risk the said property was.
48. Paulus, On Sabinus, Book XII.
Where a suit has been brought either for the partition of an estate, for the division of property held in common, or for the establishment of boundaries, and one of the parties should die leaving several heirs; the case cannot be separated into parts, but all the heirs must either accept it as it is, or they must appoint some one as agent against whom suit may be brought as the representative of all of them.
49. Ulpianus, Disputations, Book II.
A certain man was appointed heir to a share of an estate and having been ordered by the Praetor to bury the testator, he sold a slave who had been granted his freedom by the will, and promised the purchaser double damages in case of eviction, and suit having been brought against him on account of this guarantee, he paid the money. The question arose whether he could, in an action for the partition of the estate, recover the amount he lost on account of his agreement to pay double the value of the slave? Let us see, in the first place, whether he should have given security for double the amount? And it seems to me that he should not have done so; for those only are required to give security for double the amount who make sales voluntarily; but where the party who makes the sale is performing a duty, he ought not to be compelled to promise any more than where the one who makes a sale was appointed by the Praetor to execute a judgment; and even then the party is not in such a condition that he can be compelled to do what those who sell at their own will are forced to do; for there is a great deal of difference between him who discharges a duty and him who sells voluntarily. Hence in the first place the party was not obliged to make a stipulation for double the value, but the Praetor should hold that the purchaser has a right of action on the sale against the actual heir, if the property sold should be recovered by reason of a superior title. If, however, the heir made a mistake and furnished the bond, and the slave acquired his freedom, suit may be brought on the stipulation; and if this should be done, it is only just that a praetorian action should be granted against the co-heir, (as the action for the partition of an estate will not lie) so as to prevent him from sustaining the loss. And, indeed, for anyone to be able to bring the action for the partition of an estate, he must not only be an heir, but he must also sue or be sued because of some act which he performed, or failed to perform, after he became an heir; otherwise the action for the partition of an estate will not lie. Hence, if anyone should perform any act with reference to the estate before he knew that he was an heir, there will be no ground for an action in partition, because the party is not held to have acted with the intention of an heir; and therefore where anyone performs an act before the estate has been entered upon, for instance, if he buried the testator, he will not be entitled to an action for partition, but if he did this after the estate was entered upon, we hold, in consequence, that he can recover by an action in partition the expenses which he incurred through the funeral.
.50. The Same, Opinions, Book VI.
Justice does not permit anything which a father furnished his emancipated son, who was absent for the purpose of pursuing his studies, to be included in the share of the property of the deceased which passed to the said son; where it is proved that the father furnished said property not as a loan, but because he was induced to do so by paternal affection.
51. Julianus, Digest, Book VIII.
Where land is delivered to a father-in-law as dowry, and the said father-in-law appoints his son-in-law an heir to any portion of his estate, the land should be reserved before division, in compliance with the award of an arbiter in an action for partition; so that the condition of the son will be the same as it would have been if the dowry had been bequeathed in order to be retained. Wherefore, any profits acquired after issue has been joined must be delivered to him, after an account of the expenses has been taken; but such as have been acquired before issue was joined, belong equally to all the heirs. An account must also be taken of the expenses in this case also, because no instance can occur which will prevent this deduction.
(1) If I wish to bring an action for an estate against you, and you wish to bring one for the partition of the estate against me, the desires of both of us should be gratified where proper cause is shown; or if I am in possession of the entire estate and acknowledge that you are the heir to one half of the same, but I wish to relinquish the joint ownership, I should obtain an action for the partition of the estate, because the latter cannot be divided among us in any other way. Moreover, if you have good ground for bringing a suit for the estate rather than one in partition, then you must be permitted to bring a suit for the estate, since some matters are included in an action of this kind which are not included in one in partition; for instance, if I am indebted to the estate you will not recover what I owed to the deceased by an action in partition, but you will do so by an action for the estate.
52. The Same, On Urseius Ferox, Book II.
Maevius, who appointed us heirs, held property in common with Attius, and if we should bring suit in partition against Attius, and the property was adjudged to us, Proculus says it will be included in an action for partition of the estate.
(1) Where a slave is left his freedom and appointed heir, he can be compelled by an action for the partition of the estate to pay to the coheir anything which he retains in his hands arising from the accounts that he kept for the testator.
(2) An arbiter whom you and I selected in an action in partition desired to award certain property to me and some other to you, and held that, with reference to these matters, each of us should be directed to make payment to the other; and the question arose whether he could not set off one account against the other, and direct the party who owed the larger account to pay only the excess? It was decided that the arbiter could do this.
(3) Where an action is brought for the partition of an estate or for the division of property held in common, the entire property must be appraised, and not the shares in the different things.
53. Ulpianus, Opinions, Book II.
Where an emancipated son lent a sum of money to be paid to his father, it will afterwards be included in the estate of the father only in case the latter had a right of action against his son for the said sum of money.
54. Neratius, Parchments, Book III.
You and I were both joint heirs to the estate of Lucius Titius, and I sold my share of a tract of land belonging to the estate, and then an action for the partition of the estate was brought between us. In this instance, the share which was mine will not be included in the case, since when it was sold it was no longer a part of the estate; nor will your share be taken into consideration, because even if it remains in its former legal condition and belongs to the estate; still, by the sale of my share the ownership of it ceased to be common. Whether one heir does not sell his share or several do not do so, is of no importance; provided a certain portion which has been alienated by one of the heirs and has ceased to form part of the estate.
55. Ulpianus, On the Edict, Book II.
Where an action for the partition of an estate, or for the division of property held in common is brought, and it seems almost impossible to make the division; the judge can render a decision in favor of one party, and adjudge the entire property to him.
56. Paulus, On the Edict, Book XXIII.
Profits which have been due for some time are also included not only in an action for the establishment of boundaries, but also in one for the partition of an estate.
57. Papinianus, Opinions, Book II.
after an arbiter has been accepted, brothers who divide the common
estate by consent perform the duties demanded by natural affection,
and the division should not be revoked; even though the arbiter did
not render a decision after the controversy was ended, unless relief
should be granted on account of want of age.
The action for the partition of property held in common is necessary because the action on partnership has reference rather to the personal transfers from one side to the other than to the division of common property. In short, an action for the partition of common property will not lie where the property is not held in common.
2. Gaius, On the Provincial Edict, Book VII.
It makes no difference, however, whether property is held in common among different persons with partnership or without it; for in either instance an action for the partition of common property will lie. Common property exists with partnership where, for instance, parties jointly purchased the same thing; and it is common without partnership where, for example, the same property is bequeathed to them by will.
(1) With reference to the three double actions, namely; that for partition of an estate, that for the division of common property, and that for the establishment of boundaries, the question arises who is to be considered the plaintiff, because the position of all of them appears to be the same? The better opinion is, however, that he must be considered the plaintiff who instituted the proceedings in court.
3. Ulpianus, On Sabinus, Book XXX.
In an action for the partition of common property nothing is to be considered except the division of the property itself which is held in common; and where any damage is caused to, or committed against any of said property, or where loss is sustained by any of the joint-owners, or where anything derived from the common property came into his possession.
(1) Where the parties themselves have entered into an agreement with one another without fraud, the judge must cause it to be upheld in the first place in an action for the partition of an estate or in one for the division of common property.
4. The Same, On the Edict, Book XIX.
By means of this action a division is made of corporeal property of which we have ownership, but not of an estate.
(1) The question arises whether an action can be brought for the partition of common property in a well, and Mela says it can only be done where the soil in which it is dug is subject to joint ownership.
(2) This action is a bona fide one, and therefore if anything remains undivided, the division of all the rest will be valid, and an action in partition can be brought with reference to whatever is still undivided.
(3) Since the division of the property itself may be the subject of an action for the partition of common property, so, also, payments due and expenses which have been incurred may be recovered in this way, and therefore if anyone incurs expenses he can recover them; but where he does not bring an action against the other joint owner, but against the heir of the latter, Labeo very properly thinks that the expenses as well as the profits collected by the deceased may be included in the action. It is evident that the profits collected before the property became subject to joint ownership, or any expenses incurred before that time should not be included in a suit for the partition of common property.
(4) Julianus says with reference to this, that if we apply for an order of court for possession to prevent threatened injury; and, before we are ordered to take possession, I prop up the building, I cannot recover the expense of this by an action for the partition of common property.
5. Julianus, On Urseius Ferox, Book II.
But where the case was not defended, and we are ordered by the Praetor to take possession of the house, and by reason of this we have obtained the ownership of the same; it is the opinion of Proculus that I can, by an action for the partition of common property, recover a portion of the expense that I have incurred.
6. Ulpianus, On the Edict, Book XIX.
Where anyone believing that he owns land in common with Titius, gathers the crops or incurs expense, when, in fact, he owns said land jointly with another party; he can bring a praetorian action for the partition of said property.
(1) Wherefore, if Titius should sell his share in the land, even though in this instance there would be no ground for an action for the partition of common property, because the joint ownership has ceased to exist; there will still be ground for a praetorian action, which is granted with reference to payments when the property ceased to be held in common.
(2) Where, however, one joint-owner acquires any profit out of the common property either by leasing the same or by cultivating it, he will be liable to an action in partition; and if he did this in behalf of all the owners, he should either acquire the profit or sustain the loss; but if he did not act in their behalf but obtained the profit as an individual, there is much more reason that he should also be responsible for the loss. The reason why he must be held accountable for the profit in an action for the partition of common property is, because it is considered that he could not readily lease his own share. There will, however, be no ground for an action for the partition of common property, unless (as Papinianus says) the party only performed such acts as were absolutely necessary for properly administering his own share; but if he could have done otherwise, he has a right of action on the ground of business transacted, and is liable to the same action.
(3) Where any expenses are incurred after issue has been joined in an action for the partition of common property; Nerva properly holds that these are also included.
(4) Sabinus and Atilicinus are of the opinion that the offspring of a female slave is also included.
(5) The same writers think that this action likewise includes accessions and diminutions.
(6) Where a party inters a corpse in a burial-place held in common, it should be considered whether he renders said burial-place religious? In fact, each owner has an individual right of interment in a burial-place, but either of them alone cannot make a place that is free religious. Trebatius and Labeo, although they think that the place is not rendered religious, still hold that an action in factum can be brought.
(7) If you give security for the entire amount with reference to the prevention of threatened injury to a house, Labeo says that you will not be entitled to an action for the partition of common property, since you were not obliged to give security for the entire amount, but it was sufficient to have given it for your share; which opinion is correct.
(8) Where you and I have a tract of land in common but my share has been given in pledge, it will be included in action for the partition of common property, but the right of the creditor to what has been pledged will remain unimpaired, even though it should be made the subject of adjudication by the Court; for the security will remain unimpaired even if one joint-owner had conveyed his share to the other. Julianus says that the arbiter, in an action for the partition of common property, must appraise the share at so much less, because the creditor can sell that part of the property under the agreement.
(9) Julianus also says that if anyone with whom I own a slave in common pledges his share to me, and then begins an action for the partition of common property, he can be barred by an exception on the ground of pledge; but if I do not make use of this exception, it will be the duty of the Court after adjudging the entire slave to the debtor, to compel him to pay me the appraised amount of my share; since my right to the pledge remains unimpaired. If, however, the Court should adjudge the slave to me, then he can only compel me to pay whatever the pledge is worth over and above the money which was lent, and shall order that the debtor be released from liability to me.
(10) It is within the province of the judge to render such a decision that the land may be vested in one party, and an usufruct in the same in another.
(11) The other matters relating to this subject are the same that we have discussed with reference to the action for the partition of an estate.
(12) Urseius states that where a neighbor has given notice that no new work shall be performed on a building held in common, and one of the joint owners, on account of this, has judgment rendered against him, he can recover damages from his joint owner in proportion to his share; but Julianus very properly notes that this is true only where it was advantageous to the house that it should be done.
7. The Same, On the Edict, Book XX.
There is ground for an action for the partition of land held in common where it is subject to a perpetual lease. It should be considered whether land under a perpetual lease can be divided into separate tracts; but, as a general rule, the judge ought to avoid making a division of this kind, otherwise the perpetual rent will become confused.
(1) Neratius says that where an arbiter, dividing an estate not subject to a perpetual lease into two parts, awards them to two persons, he can impose a servitude, just as if they were two separate tracts of land.
(2) Where parties have the right to bring the Publician Action in rem, they can also bring an action for the partition of common property.
(3) An action for the recovery of property by the owner of the same does not lie under certain circumstances; still, if there is just cause for retaining possession, an equitable action for the partition of common property can be brought; for instance, where property is held in possession on account of the payment of a debt which in reality is not due.
(4) There is no ground for this action among depredators, nor is there any where parties hold possession by sufferance or by stealth; for the reason that this possession is unjust, and while possession by sufferance is, in fact, lawful, it does not justify judicial proceedings.
(5) Julianus states that if one possessor makes a demand for partition, and the other alleges that he holds possession by force, this action should not be granted, not even after a year has elapsed; because it is settled that, even after a year, an interdict will be granted against the one who forcibly ejected the other. He also says that where the party who instituted proceedings is said to be in possession by sufferance, this action will not lie, because an interdict is also granted in an instance of this kind. Moreover, if the plaintiff is said to hold possession by stealth, it must be held that this action will not lie; for, he adds, an interdict can likewise be obtained in a case of possession by stealth.
(6) Where there are two persons who have received property in pledge, it is perfectly just that they should be granted an equitable action for partition.
(7) Moreover, if a controversy arises between two parties with reference to an usufruct, this action should be granted.
(8) Again, if two parties are placed in possession by order of the Praetor for the preservation of legacies, there is good ground for possession on account of the custody; and hence, where there are two unborn children, the same rule will apply, and this is reasonable.
(9) It is evident that where anyone who was placed in possession for the prevention of threatened injury has already been ordered to take possession, he would not be entitled to an equitable action for his own benefit, as he has a right to bring an action for recovery.
(10) Where an action for the division of a common usufruct is brought, the judge must discharge his duty either so as to permit each one to enjoy the usufruct in different parts, or he can lease the usufruct to one of them, or to a third person; so that in this way they may collect the rents without any further disagreement; or if the property is movable, he can contrive to make the parties agree among themselves, and give security to one another for use and enjoyment for a certain time, that is to say that the usufruct shall belong to them alternately, each one having for it a special term.
(11) Neither tenants, nor persons who have received property on deposit are entitled to this action, although they may hold possession in accordance with natural law.
(12) Where parties have accepted a pledge in common, a division should be made between them in such a way that a share shall not be appraised at its true value, but only at so much as the indebtedness on that particular share amounts to; and the pledge should be assigned to one of the creditors, but permission shall not be refused to the debtor to tender the amount which he owes and redeem his pledge. The same rule applies where the possessor of a pledge brings an action in rem for redemption, and the party in possession tenders him the amount assessed by the Court.
(13) Where a debtor has pledged his share of a tract of land owned in common, and his creditor is sued by the owner of the other share, or by another creditor of another debtor, and he makes a higher bid for the property in question, and the debtor of the party to whom the property was adjudged wishes to recover his share of the land after paying what he himself owed; it is very properly held that he should not be heard, unless he is prepared to also recover what his creditor purchased under the adjudication. For, if you should sell a share of the property, and, before you have delivered it to the purchaser, an action for partition is brought against you, and the other share also should be adjudged to you; it is stated in consequence that no action can be brought on the ground of purchase, unless the plaintiff was prepared to take the entire property, because this share accrues to the vendor through another; and the purchaser can also be sued on account of the sale to compel him to take all of it; and the only question to be considered is whether any fraud was committed by the vendor. Where, however, one share has been disposed of, and the vendor is defeated in the bidding, he will be liable in an action on purchase to refund the price. The same rule is observed in mandate and other cases of this kind.
8. Paulus, On the Edict, Book XXIII.
Even though the entire number of parties who own property in common do not desire partition but only some of them, this action can be brought among them.
(1) If it is uncertain whether the Lex Falcidia is available, an action for partition can be brought between the legatee and the heir, or proceedings for recovery may be instituted, for a share the value of which is not ascertained. This likewise takes place where a peculium is bequeathed, because it is uncertain to what extent an indebtedness to the owner diminishes the peculium.
(2) The action for the partition of common property also includes the case where anyone depreciates the value of said property; for instance, by wounding a slave, or by corrupting his morals, or by cutting down trees on the land.
(3) Where a joint-owner pays on behalf of a slave more by way of reparation for damage than he should have done, the slave shall be appraised and he can recover his share.
(4) Moreover, where one joint-owner is sued in an action De peculio for the entire amount of the obligation and judgment is rendered against him, he will be entitled to an action in partition to enable him to recover a part of the peculium.
9. Africanus, Questions, Book VII.
But where one joint-owner, on account of a slave held in common, has judgment rendered against him in an action De peculio for the entire amount of the indebtedness, and the property belonging to said peculium is lost while in his hands; still, an equitable action in partition for a recovery of a portion of the money will lie; for otherwise it would be unjust if the whole matter should cause loss to be incurred by the party who defended the action; since there ought to be an equal risk imposed upon both owners with reference to property included in peculium. For where anyone undertakes the defence of a slave at the request of his owner, he will be repaid everything which he expended in good faith, even though the peculium should subsequently be lost. This is the case where no negligence has been committed by either party; since if an action De peculio is brought against the owner, and he is prepared to surrender to the plaintiff the property included in the peculium, it is held he should be heard if proper cause be shown, of course, if he did this without malicious or fraudulent intent.
10. Paulus, On the Edict, Book XXIII.
Again, although the action under the Lex Aquilia cannot be brought against an heir; still, in this action the heir must pay the joint-owner for any damage which the deceased caused to the common property on account of which any right of action arises under the Lex Aquilia.
(1) Where we have only a right of use which can neither be sold nor leased, let us consider how a division can be made in an action for the partition of common property. If, however, the Praetor should interpose and arrange matters in such a way that the Court may adjudge the use to one of the parties; it will not be held that the other, who accepts compensation, is not making use of the property, on the ground that he who appears to enjoy it is doing more than the other; because this results from the necessity of the case.
(2) In an action brought for the partition of common property the judge should appraise such property at its true value, and security should also be furnished against recovery by eviction.
11. Gaius, On the Provincial Edict, Book VII.
We should, by all means, bear in mind that if, after the destruction of the common property, he who is entitled to be paid something by reason of the common ownership desires to bring an action on this ground, he will be granted an equitable action in partition; for instance, where the plaintiff incurred certain expenses on the common property, or the joint-owner alone obtained some profit from it — as, for example, the labor of a slave, or money paid for the same — an account of all these things is taken in an action of this kind.
12. Ulpianus, On the Edict, Book LXXI.
Where a house or a wall is held in common, and it becomes necessary to rebuild it, or demolish it, or insert something into it; an action can be brought for the partition of common property, or we may institute proceedings under the Edict Uti possidetis.
13. The Same, On the Edict, Book LXXV.
Everything is included in an action for the partition of common property, unless something has been expressly excepted by common agreement to avoid its being included.
14. Paulus, On Plautius, Book III.
This action includes whatever has been done, or ought to have been done for the common benefit by a party who knew that he had a fellow-owner.
(1) Any expenses, however, which I incurred while I believed that the land was my own, and which, if suit is brought for the recovery of a part of the land I can, of course, retain by pleading the exception on the ground of fraud; it should be considered whether I can retain them on account of the justice of the action itself, if suit in partition should be brought against me. I think the better opinion is that I can do so, because the action for the partition of common property is a bona fide one, but this is only the case where suit is brought against me; still, if I should dispose of my share, nothing will remain from which I can retain the expenses. Let us consider if a purchaser from me can retain them, for if an action is brought to recover a share from him, can he retain the amount on the ground of the expense which I incurred, just as I myself could do? The better opinion is that, in this instance, the expenses can be retained, and since this is the case, it is most justly held that I should be granted an equitable action against my co-owner on account of said expenses, even though the joint ownership still continues to exist. The rule is different, however, where I spend money upon my own property, as it were, which really belongs to another, or is held in common; for, in this instance, I have only the right of retention because I do not wish to bind anyone to myself; where I think property belongs to Titius which in fact belongs to Maevius, or that it is owned by me in common with another party who in reality is not my co-owner, I do this to bind another party to me; and as an action on the ground of business transacted is granted me against someone whose affairs I have attended to thinking that they were those of another, so also in the instance under consideration. Therefore, if I were to sell the land to another, for the reason that the case was such that I should be entitled to an action, one on the ground of business transacted should be granted me (as Julianus also says).
(2) If it should be agreed that no partition whatever shall be made, it is perfectly evident that an agreement of this kind would have no force; but if it was agreed that none should be made within a certain time, and this enures to the benefit of the property itself, such an agreement will be valid.
(3) Where it is agreed between joint-owners that the community of ownership shall not be divided within a certain time, there is no doubt that a party who is bound by an agreement of this kind is at liberty to sell; and therefore a purchaser from anyone who brings an action for the division of common property will be barred by the same exception by which the vendor himself would have been barred.
(4) If a joint-owner makes an agreement not to bring suit for his share, the joint ownership is, to all intents and purposes, terminated.
15. The Same, On Plautius, Book V.
Where a joint-owner is sued with reference to a slave held in common, and judgment is rendered against him, he can bring a suit for partition even before he complies with the judgment; for, if a noxal action is brought against one he can immediately bring suit against his co-heir for the delivery of his share to him, giving security at the same time that, if he does not deliver the slave, he will return the share.
16. The Same, On Plautius, Book VI.
Where joint-owners dissolve their ownership, it is customary for security to be furnished with reference to any indebtedness which may exist, which is dependent upon a condition.
17. Modestinus, Rules, Book IX.
Where one of a number of joint-heirs purchases from a creditor a tract of land which had been given in pledge by the testator, he should not be sued by his co-heirs in an action for the partition of common property.
18. Javolenus, Epistles, Book II.
An arbiter cannot decide that land belonging to an estate shall be subject to a servitude attaching to land which is not a part of said estate; for the reason that the authority of a judge cannot extend beyond what is before the court.
19. Paulus, On Sabinus, Book VI.
A tree which grows up on a boundary line and also a stone which extends over two tracts, so long as they are attached to the soil belong to both owners, according to the position they occupy over the land of each; and they will not be included in an action for the partition of common property. But as soon as the stone is removed, or the tree uprooted or cut down, it becomes common and undivided property, and will be included in action for the partition of such property; for what was formerly in separate parts is now merged. Wherefore, where two masses of any substance belonging to two owners are mixed together, the entire mass is common property, even though some portion of the substance, as it was in the first place, exists separately; and so, also, where a tree or a stone are separated from the soil, the rights of ownership are merged.
(1) An arbiter for the purpose of dividing common property should not be appointed with reference to a vestibule, which is common to two houses, where either of the parties are unwilling; because where anyone is compelled to bid for such a vestibule, he necessarily will sometimes be obliged to pay the value of the entire house, if it has no other entrance.
(2) Where a right of way through the same place belongs to two of us, and one has incurred some expense with reference to it; Pomponius says rather harshly that either an action for partition or one on partnership will lie; for how can joint ownership be understood to exist in something which the parties use separately? A suit should be brought on the ground of business transacted.
(3) The judge who presides in an action for the partition of common property as well as in one for the partition of an estate, where a slave has taken to flight, must direct the parties who are before him to bid, and should then adjudge the slave to him who bids the highest; and there will be no danger that the penalty prescribed by the Lex Fabia will be incurred on account of the decree of the Senate.
(4) A watercourse is said by Labeo not to be included in an action for the partition of common property; for it is either a part of the land — and hence should not be considered in the trial — or it is separated from the land but is divided either with reference to the quantity or the time when it is to be used. Sometimes, however, rights may be separated from the land and still not be divided either by quantity or by periods of use; as, for instance, where the party to whom they belonged left several heirs, and, when this happens, it is suitable that these things also should be included in an action for partition; for Pomponius says that he does not see why they should not be included in an action for the partition of common property as well as in that of the partition of an estate. Therefore, in instances of this kind, they are also included in an action for the division of common property, just as the aforesaid rights are divided either by quantity or by periods of time.
20. Pomponius, On Sabinus, Book XIII.
Where a person with whom you hold land in common does not answer in the case of an offence, and on this account the house is demolished, or the trees are cut down by order of the judge; damages can be recovered by you in an action for the partition of common property, for whatever is lost through the negligence of a joint-owner is included in this proceeding.
21. Ulpianus, On Sabinus, Book XXX.
It is greatly advantageous to all parties for a judge, in dividing tracts of land, to follow whatever is most beneficial, or what the litigants may prefer.
22. Pomponius, On Sabinus, Book XXX.
If I build a wall for my neighbor and myself with the understanding that I can recover the expense of the same from him in proportion to his share; or if I build the wall by way of donation, it will be common property.
23. Ulpianus, On the Edict, Book XXXII.
Where an agreement is made between you and your co-owner to the effect that you can take the crops in alternate years, and your co-owner does not permit you to gather them during your year; it should be considered whether an action based on the contract of leasing or one for the partition of common property will lie. The same question arises where a joint-owner who agreed that he should enjoy the crop every second year turns in cattle, and causes the crop for the next year, which his co-heir had a right to gather, to be ruined? I think that the better opinion is that an action for the partition of common property should be brought, rather than one on the contract of leasing (for how can a lease exist when there is no rent involved?) or a civil action should certainly be granted for uncertain damages.
24. Julianus, Digest, Book VIII.
Where a slave held in common acquires anything through the property of one of his owners, it will, nevertheless, be subject to joint ownership; but the party through whose property the acquisition was made can collect the amount by an action in partition, because it is in conformity with good faith that every one should have a prior lien on anything which a slave acquires by means of his property.
(1) If I intend to bring an action against you for the partition of common property, and you transfer your share to Titius for the purpose of changing the conditions of the trial; you will be liable to me in a praetorian action, because you acted in such a way as to avoid an action in partition being brought against you.
25. The Same, Digest, Book XII.
Where Stichus, a slave owned by you and me in common, has himself a sub-slave named Pamphilus, who is worth ten aurei, and an action De peculio is brought against me, and, having lost it, I pay ten aurei; then, even though Pamphilus should die afterwards, you will, nevertheless, be compelled to pay me five aurei in an action in partition or in one on partnership, because I have released you from a debt of that amount. Much more ought I to be entitled to recover this amount, if Stichus, after the death of Pamphilus, should acquire another sub-slave.
26. Alfenus Verus, Digest, Book II.
A slave owned in common, while in the hands of one of his owners, broke his leg while working; and the question arose what kind of an action the other owner could bring against him with whom the slave had been at the time? I answered that if the common property had been injured rather through negligence than through accident, he could recover whatever damages were assessed by an arbiter in an action for the partition of common property.
27. Paulus, Epitomes of the Digest of Alfenus, Book III.
A single joint-owner cannot legally put a slave owned in common to torture, except with respect to some matter in which all the parties were interested.
28. Papinianus, Questions, Book VII.
Sabinus says that no joint-owner can legally perform any act with reference to common property without the consent of the other, hence it is manifest that the right of prevention exists; and where parties are in the same position, it is established that he who objects has the advantage. But, although where property is in common, one joint-owner may be prevented from proceeding where a building is in course of erection, he cannot be compelled to remove it if the other failed to prevent him from constructing it when he could have done so; and, therefore, compensation for the damage can only be obtained by means of an action for the partition of common property. Where, however, he consented to the erection of the building, he will not be entitled to an action for damages; but if one party did something during the absence of his co-heir to the injury of the latter, he can then be forced to remove it.
29. Paulus, Questions, Book II.
Where anyone holds land in common with Titius, and, believing that he held it in common with Maevius, expends money thereon; it is very properly held that an action for the partition of common property will be sufficient for him; for this is the case if I know that the property is common but do not know who my co-heir is, as I am not transacting the business of my co-heir, but am managing my own property; and the action arises rather with reference to the property on which the money was expended, than on the person of the joint owner. In short, we hold that this action is the one under which a ward would be liable, in an application to the court to compel him to reimburse expenses. The case is different where a man thinks that he is spending money on his own property, while in fact it is held in common; and in this instance he will neither be entitled to an action in partition, nor will an equitable action be granted him; for anyone who knows that property is owned in common or belongs to another transacts his business with a view to render him liable to himself, even though he may be mistaken with reference to the person.
(1) Pomponius says that anyone of a number of joint-owners can demand a judge; but where anyone of the said joint-owners remains silent, an action for the division of common property may properly be brought against him.
30. Scaevola, Opinions, Book I.
An action for the partition of common property may be properly brought either where neither party is in possession, or where one of the joint-owners is not in possession of the land.
31. Paulus, Opinions, Book XV.
two slaves were reserved out of an estate by the order of the Praetor
for the purpose of serving certain minors, it was held that they were
not divided, but remained the common property of all.
This action is very necessary, it is employed every day; and it was introduced principally on account of suits for the recovery of property.
2. Paulus, On the Edict, Book XXI.
To "produce" is to place property publicly in the power of another, so that he who brings a suit may have an opportunity for trying it,
3. Ulpianus, On the Edict, Book XXIV.
In this proceeding the plaintiff ought to know everything, and to state all the facts relating to the property which is the subject of the action.
(1) A party litigant who institutes proceedings for the production of property does not, in fact, state that he is the owner, nor is he obliged to prove this, as there are many causes for bringing an action of this kind.
(2) Moreover, it should be noted in this action that where the defendant is contumacious, judgment based on the oath of the plaintiff may be rendered against him, the amount to be decided by the judge.
(3) This action is a personal one, and he is entitled to it who is about to bring a suit in rem, no matter what kind of a suit it may be, whether the Servian Action on a pledge, or an hypothecary action, both of which can be brought by creditors.
(4) Pomponius says, however, that where a man is about to bring suit for an usufruct he is entitled to an action for production.
(5) Moreover, where anyone who is about to apply for an interdict asks that the property be produced, he shall be heard.
(6) Moreover, if I desire to select a slave or any other property, the right to choose which has been bequeathed to me; it is established that I can bring an action for production, and when the property is produced, that I can bring suit for recovery of the same.
(7) Where anyone wishes to institute proceedings by means of a noxal action, an action for the production of the property is necessary; for, in fact, where the owner of the slave is ready to make a defence, and the plaintiff cannot designate the slave unless he is present, either because he does not recollect him, or does not have his name; is it not just that the entire body of slaves should be produced before him, in order that he may pick out the one who committed the offence? Therefore, this should be done, where proper cause is shown, in order that the party with reference to whom the action is brought may be designated after a survey of the slaves is taken.
(8) Where anyone besides the heir wishes the will, or the codicils, or anything else relating to the will to be produced, it should be held that this cannot be done by means of this action, since the interdicts relating to such matters will be sufficient for the party; and this was the opinion of Pomponius.
(9) It must be remembered, however, that not only those persons whom we have mentioned are entitled to the action for production, but also anyone who has an interest in having the production made; hence the judge ought to determine in the first place whether the party has an interest, and not whether he is the owner of the property in question; and he should then order it to be produced, or refuse to do so because the party has no interest in the matter.
(10) Julianus further states that if I have no right of action for recovery, I can still institute proceedings for production, because it is to my interest that this should be done; as, for instance, where a slave is left to me that Titius may choose, for I can bring an action for production, since I have an interest in its being done in order that Titius may make his selection; and I then have an action for recovery, even though I have no right to select a slave that may be produced.
(11) Where an action for the production of property is brought against me, I cannot bring one for the same purpose merely because I have been sued in the said action; even though it may be held that I am interested, as I am liable for the restoration of the slave. This, however, is not sufficient, for, otherwise, where anyone had managed to fraudulently relinquish possession, he could bring an action for production, even when he did not intend to bring one for recovery, or to proceed by means of an interdict; and either a thief or a robber could do this; which is by no means true. Therefore Neratius very properly states that the judge, in an application for production, must investigate carefully whether the party has a just and probable cause of action by reason of which he desires the property to be produced.
(12) Pomponius states that several parties may legally bring an action for the production of the identical slave; for instance, where a slave belongs to the first one, the usufruct of the same to the second, and the third contends that he has possession of him, and the fourth alleges that he was pledged to him; hence, all of them are entitled to an action for his production, because all of them have an interest in having the said slave produced.
(13) The same author adds that the judge, by reason of the authority vested in him on account of this action, can also examine any exceptions which the possessor may interpose, and if any of them shows clearly that the plaintiff is barred, then he who is in possession should be discharged; but if the exception should be obscure, or a more important matter be involved, this should be deferred until the trial takes place, and the property should be ordered to be produced. There are certain exceptions, however, which the judge who is to preside in the action for production should by all means himself determine; for instance, those based upon an informal agreement, on malicious fraud, on an oath, or on a judgment formerly rendered.
(14) Justice sometimes demands the production of the property so that, although an action for this purpose cannot be brought, an action in factum may be granted; a matter which Julianus refers to. He says a slave who belonged to my wife kept my accounts, you are in possession of said accounts, and I desire them to be produced. He says further if the said accounts are written upon my paper, there is ground for this action, because I can bring suit for said accounts, since if the paper is mine what is written thereon is mine also; but if the paper is not mine, as I cannot bring suit to recover it, I cannot institute proceedings for its production; hence an action in factum will lie in my favor.
(15) It must be remembered that by this action proceedings can be instituted against the possessor, and not only against him who has civil possession, but also against him who has possession naturally. Finally, it is established that a creditor who has received property in pledge can be compelled to produce the same:
4. Pomponius, On Sabinus, Book VI.
For the action can be brought against a party with whom property has been deposited, to whom it has been loaned, or by whom it has been rented.
5. Ulpianus, On the Edict, Book XXIV.
Celsus states that if anyone who agreed to remove merchandise places it in a warehouse, an action for production based on his contract can be brought against him; and, moreover, if the party making the agreement dies and leaves an heir, the action can be brought against the latter. Where, however, there is no heir, the action can be brought against the keeper of the warehouse; for, if the property is not in the possession of anyone, he says it is evident that either the keeper of the warehouse has it in his possession, or, at all events, it is certain that he can produce it. He also asks, "How can a party be in possession of property who agreed to remove it? Is this because he had a lien on it?" This example shows that even those persons who have the power to produce property are liable to an action for its production.
(1) Julianus, however, says that in accordance with this rule a person is liable to an action for the production who is in possession for the purpose of preserving property or legacies, as well as he who holds property by reason of an usufruct, even though, in this instance, he by no means has possession of it. Hence Julianus asks to what extent shall such parties produce said property? He answered that the former must do so to enable the plaintiff to have possession, but the party against whom the suit was brought must be in possession in order to preserve the property; and that he who has the usufruct must do so in order that the plaintiff may possess the property, but that he against whom the action is brought may use and enjoy the same.
(2) Moreover, Julianus says that a purchaser who does not return partially used materials, can be compelled to produce them; the damages being estimated according to the amount that I am willing to swear to; but he adds in the same place: "If the purchaser has possession, or has committed fraud in order to avoid having possession."
(3) Celsus also says that if you have piled manure upon my unoccupied land, you can, by an action for production, obtain permission to remove it, on condition, however, that you remove the whole of it, otherwise you cannot do this.
(4) Moreover, if a boat should be carried by the force of a river upon the field of another party, Neratius holds that the latter can be sued for production. Wherefore, he asks whether the plaintiff must give security to the owner of the land merely with reference to future damage, or for past damage also; and he replies that it must also be given for the damage already committed.
(5) Where, however, if anything from a fallen building is thrown upon your land, or upon your house, you can be compelled to produce it, even though it may not be in your possession.
(6) Again, where anyone has not the power to deliver anything, even though he has possession of it, he will not be liable to an action for its production; as for instance, where a slave is a fugitive it is evident that the party will only be liable to give security to produce said slave if at any time he should come into his power. But where he has not taken to flight, but you permit him to live where he wishes, the same rule applies; or if you have sent him on a journey, or you employ him upon your land, you will only be compelled to furnish security.
6. Paulus, On Sabinus, Book XIV.
A jewel which is set in gold belonging to another, or any ornamentation attached to a candlestick belonging to another party cannot be demanded in an action for recovery, but an action can be brought for production in order to have it detached. The rule is different where material is used in a house, as, in this instance, even an action for production will not lie, because the Law of the Twelve Tables forbids the material from being separated; but an action on the ground of material used can be brought for double its value under the same law.
7. Ulpianus, On the Edict, Book XXIV.
By the term tignum we understand in the Law of the Twelve Tables every description of material; as is very properly held by certain authorities.
(1) If you attach my wheel to a vehicle of yours, you can be compelled to produce it — and this was stated by Pomponius — although, strictly speaking, it is not legally in your possession.
(2) The same rule applies where you attach my plank to your chest or ship, or my handle to your cup, or my ornaments to your bowl, or use my purple for your clothing, or join to your statue an arm which is mine.
(3) Moreover, a municipality can be sued for production because it has the power of delivery; for it has been settled that it can hold possession and acquire by usucaption. The same rule must be held to apply to societies and other corporate bodies.
(4) Where the party is not in possession at the time issue is joined, but comes into possession before the decree has been rendered; we think it should be held that judgment should be pronounced against him unless he restores the property.
(5) Where anyone has possession at the time that issue is joined, and afterwards ceases to have possession without fraudulent intent, he should be discharged; even though, (as Pomponius says) he is to blame because he did not at once make restitution, but permitted issue to be joined against him.
(6) The same author states that where a party in possession at the time when issue was joined afterwards ceased to have possession, and then came into possession again, either by reason of the same title or of another one; judgment must be rendered against him, unless he delivers up the property.
(7) Pomponius not improperly adds that the party who brings suit for production must have an interest at both times in the property being delivered to him; that is to say, at the time when issue is joined and when the decision is rendered. This opinion is also held by Labeo.
8. Julianus, Digest, Book IX.
Where an action for production is brought against the party who was neither in possession nor was guilty of fraud to avoid having possession, and after his death his heir has possession of the property, the latter can be compelled to produce it; for if I bring suit against a man for a tract of land, and his heir comes into possession of it under the same title, he can be compelled to surrender it.
9. Ulpianus, On the Edict, Book XXIV.
Julianus says that if anyone should kill a slave who is in his possession, or should transfer the possession to another, or should spoil property in such a way that it cannot be held; he will be liable to an action for production of the same, because he acted fraudulently to avoid being in possession. Hence, if he spills or destroys wine, oil, or anything else, he will be liable to this action.
(1) Acorns from your tree fall upon my land and I turn cattle thereon to pasture them. To what action am I liable? Pomponius states that an action for production will lie if I turned the cattle out with fraudulent design so that they might feed upon the acorns; for even if the acorns were still there, and I should not permit you to remove them, I will be liable to an action for production, just as if anyone were not permitted to remove materials which had been placed upon my land; and we accept the opinion of Pomponius, whether the acorns are still there, or they have been consumed. If they are still there, I will be entitled to an interdict to permit me to gather acorns, so that I may have the power to gather every third day, if I furnish security against threatened injury.
(2) Where anyone has caused property to come into the possession of another, he is held to have acted fraudulently in order to avoid being in possession; provided he committed the act with malicious intent.
(3) Where anyone produces property which is in a worse condition than it was previously, Sabinus says that he is still liable to an action for production. This is certainly true where the property was fraudulently changed into another form; as, for instance, where an ingot of metal is made out of a cup; for even though he produces the ingot, he will be liable to the action for production, as the form having been changed, he almost destroys the substance of the property.
(4) Marcellus states that if ten aurei are bequeathed to you under a certain condition, and the usufruct of the same to me absolutely, and then the heir, while the condition is still pending, and without requiring security, pays the said ten aurei to me, the usufructuary; he will be liable to an action for production, as having acted fraudulently to avoid being in possession. The fraud consists in his neglecting to exact security from the usufructuary, and the result was that your legacy was lost, since you now are not able to bring an action to recover the money. The action for production, however, could only be available if the condition on which the legacy depends takes place. You might, however, have protected yourself by means of a stipulation for the payment of the legacy, and, if you did so, you will have no need of the action for production. If, however, the heir, not being aware that a legacy had been bequeathed to you, did not exact security from the usufructuary, Marcellus says that an action for production will not lie, of course because there was no fraud; but the legatee will be entitled to relief by means of an action in factum against the usufructuary.
(5) To "produce," so far as this section is concerned, is to exhibit something in the same condition in which it was when issue was joined, so that the party, having full power to examine the property, can proceed with the action which he intended to bring without the property which he claimed being in any respect injured; even though the suit was brought, not for the purpose of restitution, but for production.
(6) Hence, if when the party produces the property it has become his by usucaption after issue has been joined, he cannot be considered to have produced it at all, because the plaintiff has lost his case, and therefore the defendant must not be discharged; unless he is ready to answer the claim as referred back to the original day, so that the profit may be estimated in accordance with law.
(7) For the reason that in this action the plaintiff obtains everything depending upon the property which is the object of the suit, Sabinus holds that the offspring of a female slave should likewise be delivered, whether she was pregnant at the time, or conceived subsequently; and this opinion is also approved by Pomponius.
(8) In addition to this, any advantages which may have been lost on account of the property not having been produced, or because it was produced too late, should also be considered by the judge; hence Neratius says that the advantage to the plaintiff, and not the actual value of the property, should be estimated, and this advantage, he says, is sometimes of less value than that of the property itself.
10. Paulus, On the Edict, Book XXVI.
Where a right of choice is granted within a certain time, and the trial has been protracted so long that the production will be of no avail, the advantage to which the plaintiff is entitled must be preserved; but if the heir was not to blame because he did not produce the property at the time when issue was joined, he should be discharged.
11. Ulpianus, On the Edict, Book XXIV.
But where an estate is lost on account of a slave not being produced, it will be perfectly just for the judge, in the assessment of damages, to take into consideration the injury done to the estate.
(1) Let us consider where the property must be produced, and at whose expense this shall be done. Labeo says that it should be produced where it was at the time when issue was joined, but it must be transported or led to the place where the proceedings were instituted, at the risk and expense of the plaintiff. He says that it is evident that the party in possession of a slave must furnish him with food and clothing, and take care of him. I hold that sometimes the plaintiff must do this also; where, for example, a slave was accustomed to support himself either by manual labor, or by some trade, and is now compelled to be idle. In like manner, where the slave who is to be produced is placed in charge of the Court, the party who desired him to be produced must be responsible for his food, if his possessor was not accustomed to provide him with it; for if he had been accustomed to do so, then he can not refuse to pay for his maintenance. Sometimes the party in possession is required to produce him at his own expense; as, for instance, where he has placed property in some secret place so that the production of the same might be more inconvenient for the plaintiff; for, in this instance, he must produce the property at his own expense and risk in the place where the proceedings have been instituted, so that his bad faith may not benefit him.
(2) Where anyone is sued with reference to several things, and was in possession of all of them at the time when issue was joined, even though he may afterwards have relinquished possession of some of them without fraudulent intent; judgment must be given against him, unless he produces all that he can.
12. Paulus, On the Edict, Book XXXVI.
There is ground for this action where a party is to be produced whose freedom anyone wishes to have established.
(1) A son under paternal authority is liable to this action, if he has power to produce the property.
(2) Julianus says that where several actions are brought for production of the same property, and this is done for the same reason, an exception can be pleaded. Where, however, a party brings suit for the recovery of property, and after issue has been joined he receives the property from another person, a new cause of action is introduced, and therefore he cannot avail himself of an exception. Again, where anyone is about to bring suit against a party for theft and institutes proceedings for production, and the property is stolen a second time, the same principle will apply. Finally, where a party institutes proceedings for production in order that a choice may be made, and after issue has been joined the right to choose is given to him by the will of some one else, he can bring another action for production.
(3) Where anyone makes must out of my grapes, or oil out of my olives, or clothing out of my wool, being aware that these things belong to another; he will be liable to an action for production with reference to both, because what is made out of our property is certainly ours.
(4) Where a slave dies after issue has been joined, even though this happens without the malicious fraud or negligence of the possessor; still, judgment sometimes should be rendered against him to an amount equal to the benefit which would have accrued to the plaintiff if nothing should be done by the possessor to prevent the slave from being produced in court when issue was joined; and so much the more is this the case if it appears that he died on account of some accident which would not have happened if he had been produced at the time.
(5) Where property cannot be produced immediately for some good reason, the party must furnish security by order of court, that he will produce it upon a specified day.
(6) An heir can make use of this proceeding in his own name, but not while acting as heir. The heir of a possessor is also liable on his own account. Hence, it is not worth while to ask whether the action can be granted either to an heir or against one. It is evident that this action should be granted against an heir where the deceased had been guilty of fraud, if the estate has become more valuable on this account; for instance, where the heir obtained the price of the property.
13. Gaius, On the Edict of the Urban Praetor; Title, Cases Relating to Liberty.
Where a freeman is said to be detained by anyone, an interdict is available against him who is said to detain him for the purpose of compelling him to produce him; as an action for his production is held to be of no force in a case of this kind, because it is considered to lie only in favor of one who has a pecuniary interest.
14. Pomponius, On Sabinus, Book XV.
Where a husband has received money as a gift from his wife, and, knowing that it did not become his, paid it out for the purchase of some article, he acted fraudulently to avoid being in possession, and therefore is liable to an action for production.
15. The Same, On Sabinus, Book XVIII.
Treasure which belongs to me is buried in your land and you will not permit me to dig it up. So long as you do not remove it from the place in which it is, Labeo says that I am not legally entitled to an action for theft, or to one for production on this account, because you were not in possession of the said treasure, nor have you acted fraudulently in order to avoid having possession of the same, since it may be that you do not know that the treasure is in your land. It is not unjust, however, where I make oath that I do not assert this claim for purpose of annoyance, if an interdict or a judgment should be granted to the effect that you shall not employ force against me to hinder me from digging up, raising, and removing the said treasure, if I take no steps to prevent security for the avoidance of threatened injury being furnished you, on account of my acts. Where, however, the treasure is stolen property, I am entitled to an action for theft.
16. Paulus, On Sabinus, Book X.
Where a slave has anything in his possession, his owner is liable in his own name to an action for production; but if the slave without the knowledge of his owner, is guilty of fraud to avoid being in possession, a noxal action for theft, or one for malicious fraud should be granted on account of the slave, but no praetorian action can be brought for production.
17. Ulpianus, On All Tribunals, Book IX.
Where a party produces a slave who is disabled or blind, he should be discharged from liability under this action, for he has produced him, and a production of this kind is no impediment to a direct action, for the plaintiff can still bring suit under the Lex Aquilia for the damage sustained.
18. The Same, Opinions, Book VI.
Where a note becomes worthless through payment and pledges are released, the creditor can, nevertheless, bring suit for the production of documents relating to the contract against anyone else than the debtor.
19. Paulus, Epitomes of Alfenus, Book IV.
Any one who is interested can bring an action for production. A certain person, however, made inquiry as to whether this action was available to compel the production of the accounts of his adversary for his inspection, as he alleged had a great interest in having the same produced. The answer was that the law should not be employed to cause annoyance, and that terms ought not to be captiously construed, but that it was proper to consider with what intention the words were uttered; for, in accordance with this principle, if anyone was desirous of studying some branch of knowledge, he might state that he had an interest in such and such books being produced for his benefit, because if they were produced, after he had read them he would become a more learned and a better man.
20. Ulpianus, Rules, Book II.
Where an action for production is brought on account of the offences of slaves, torture may be employed for the purpose of making them reveal their accomplices.