1Ulpianus, On Sabinus, Book XXVIII. Where a purchaser loses the entire property which he bought or only a part of it, on account of a better title, he has recourse to the vendor. Where he loses a portion of it, or an undivided part of land, he has recourse for the amount which he has lost. If, however, he loses a certain portion of the tract, and not an undivided share of the same, he is entitled to recourse according to the quality of the land of which he has been deprived. But what if he should be deprived of either the best, or the worst part of the land? The quality of the land should be ascertained, and he will be entitled to recourse in proportion to its value.

2Paulus, On Sabinus, Book V. If double damages are not promised, and an action is brought on the ground of eviction; judgment for double damages should be rendered against the defendant.

3The Same, On Sabinus, Book X. In the sale of a slave, his peculium is always understood to be reserved. Where a slave who was sold took away with him a certain portion of his peculium, and an action of theft is brought against the purchaser on this account, the latter cannot have recourse to the vendor for double damages on the ground of a stipulation, because the vendor, at the time of the sale, should guarantee the slave to be free from liability for theft, or damage. This right of action, however, only originates after the sale has taken place.

4Ulpianus, On the Edict, Book XXXII. The question arises whether he who sold the slave should give a surety against eviction, who is commonly called a second surety. It has been settled that he need not do so, unless it has been agreed upon. 1Where a guardian makes a sale in the name of a minor, and eviction follows, Papinianus says in the Third Book of Opinions that an equitable action will be granted against him for whose benefit the guardianship is being administered. He adds, however, that this only applies to what was included in his property at the time. Let us see whether the ward will be liable for the entire amount if the guardian should not be solvent. This I think to be the better opinion, for a contract made with a guardian is not void.

5Paulus, On the Edict, Book XXXIII. The vendor of a slave stated that his peculium was an accessory. If a sub-slave was taken away by eviction, Labeo says that the vendor will not be liable on this account, for if the slave did not form part of the peculium he would not constitute an accessory, but if he did, the purchaser sustained an injury through the decision of the judge; but the case is different if the vendor had expressly stated that the slave was an accessory, for, in this instance, he would be obliged to guarantee that the slave borrowed part of the peculium.

6Gaius, On the Provincial Edict, Book X. Where a tract of land is sold, it is necessary to furnish security against eviction, according to the custom of that part of the country where the transaction took place.

7Julianus, Digest, Book XIII. Where a party buys from a ward a slave who was substituted for him, he can bring an action on purchase against the substitute, as well as one under the stipulation on the ground of eviction; but he will be entitled to neither of these actions against the ward himself.

8The Same, Digest, Book XV. The vendor of a slave must guarantee the purchaser to the amount of the interest that the latter had that the slave should belong to the vendor. Wherefore, if the purchaser should lose, by eviction, the offspring of a female slave or an estate which the slave had entered upon by his order, he can bring an action on purchase. And just as the vendor is bound to deliver to him the slave which he sold him, so he is bound to make good to the purchaser everything that he could have acquired through the slave, if he had not been deprived of him.

9Paulus, On the Edict, Book LXXVI. If you should sell me a slave belonging to Titius, and Titius should afterwards appoint me his heir; Sabinus says that, in case of eviction, the right of action is lost, since the slave cannot be taken from me, but that recourse must be had to an action on purchase.

10Celsus, Digest, Book XXVII. If anyone should sell and transfer to me a right of way which he has in common with another, as if he were the sole owner of the same, he will be liable to me on the ground of eviction, if the other party refuses to transfer to me his right.

11Paulus, Opinions, Book VI. Lucius Titius bought lands in Germany, beyond the Rhine, and paid a portion of the purchase-money. When suit was brought against the heir of the purchaser for the remainder, the latter set up a counterclaim alleging that these possessions had been partially sold by order of the Emperor, and partly distributed as rewards among veteran soldiers. I ask whether this risk must be assumed by the vendor? Paulus answered that future cases of eviction, which occur after the sale has been contracted, do not affect the vendor; and, therefore, according to the facts stated, suit could be brought for the remainder of the price of the land. 1The vendor cannot be sued for either double or simple damages, on account of such offences as are usually punished by public prosecution, where the following words are inserted in a stipulation, namely: “The slave in question is free from liability for damage committed.”

12Scævola, Opinions, Book II. A certain individual having been appointed heir to half an estate sold all the land belonging to the same, and his co-heirs accepted the price. The land having been lost by eviction, I ask whether the coheirs will be liable to an action on purchase. I answer that if the coheirs were present, and did not dissent, each one of them was held to have sold his share.

13Paulus, On Sabinus, Book V. Proculus very justly held that where part of a tract of land is lost by eviction, an estimate of its quality should be made at the time when it was sold, and not when the purchaser was deprived of it;

14Ulpianus, On the Edict, Book XVIII. And that half of the amount of the price should not merely be taken into consideration.

15Paulus, On Sabinus, Book V. If, however, the land subsequently received any accession by way of alluvial deposit, the time when this took place should be taken into account. 1Ad Dig. 21,2,15,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 391, Note 28.Where an usufruct is lost by eviction, an estimate should be made of the value of the crops. Where, however, a slave is lost to the purchaser by eviction, the extent to which the land is diminished in value on this account must be estimated in court.

16Pomponius, On Sabinus, Book IX. Where the property sold has been recovered by anyone having a better title, an action on purchase can be brought with reference to anything which has been added to it, just as where those things which are expressly stated to be accessories to land which is purchased must simply be made good by the vendor if they are lost by eviction. 1A stipulation for double damages is said to be operative at the time the property is restored to the claimant; or where he has judgment rendered against him for the value of the property; or when the possessor, having been sued by the purchaser, is released. 2Ad Dig. 21,2,16,2ROHGE, Bd. 10 (1874), S. 263: Voraussetzung der mora, wenn zur Erfüllung der Verbindlichkeit die Mitwirkung des Gläubigers erforderlich ist. Durch Mittheilung der Klage wird der Schuldner noch nicht unbedingt in Verzug gesetzt.ROHGE, Bd. 10 (1874), S. 274: Der Verkäufer muß sich nicht nur zur Lieferung der Waare bereit erklärt haben, sondern auch wirklich dazu bereit gewesen sein, um den Käufer in Verzug zu setzen.Where a slave, on account of whom we have stipulated for the payment of double damages is lost by us because of his being a fugitive, or not being sound; the question arises can we, nevertheless, institute proceedings? Proculus says that it should be considered whether a difference does not exist where he was not mine at the time eviction took place, and where he had become mine at that time; for, in the case where he became my property, I immediately acquired an interest in the amount to which he was deteriorated, for this reason; and I at once acquired a right of action on the stipulation, which I cannot lose either by eviction, or by the death, manumission, or flight of the slave, or for any other similar reason. But if he had not become part of my property, I am none the poorer, because the slave is a fugitive; since he was not included in my estate. If, however, I stipulated that he was sound, and not accustomed to wander about, my interest only has reference to the present use, although it may be undetermined; just as if it was unknown how long I should have him, and whether anyone would recover him by eviction either from me, or from the person to whom I sold him and to whom I likewise gave a guarantee. The conclusion of Proculus is that I could only be sued on the stipulation after it had become operative, to the extent of my interest that the said slave should not be in the habit of running away.

17Ad Dig. 21,2,17Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 172a, Note 2.Ulpianus, On Sabinus, Book XXIX. No one doubts that a vendor who attempts to recover property which he himself has sold can be barred by an exception on the ground of fraud, even though he may have obtained ownership of it under another title; for he is dishonorably attempting to obtain property which has been disposed of by him. Moreover, the vendor should determine whether he prefers to retain the property by arresting the proceedings by means of an exception; or, if he has been deprived of the property, bring an action for double damages under the stipulation.

18Paulus, On Sabinus, Book V. Even though an exception may not have been pleaded, or if, having been successfully opposed, the purchaser is, nevertheless, evicted; the vendor can still be sued for double damages under the stipulation, for an action on purchase can be brought against him.

19Ulpianus, On Sabinus, Book XXIX. Where, however, no stipulation was entered into, we hold the same opinion with reference to an action on purchase. 1Where a freeman, who was serving Titius in good faith as a slave, is sold to me, and Titius makes him his heir, as if he was free, and he joins issue with me on this account; I will be entitled to hold him liable as the heir of Titius.

20Pomponius, On Sabinus, Book X. I encumbered a tract of land belonging to me, and afterwards sold it to you under the condition that you would not encumber it. If I should afterwards purchase the said land from you, and you execute a bond to me providing against eviction, it should be stated in the bond that the land was encumbered on my account, because if this is not done, and I bring an action against you on this ground I can be barred by an exception based on fraud.

21Ulpianus, On Sabinus, Book XXIX. Where a slave, who has been sold, dies before he is recovered by someone having a better title, the stipulation does not become operative, because no one recovered him, and what occurred is but the fate of mankind. Still, if any fraud existed, the purchaser can bring an action on that ground. 1Hence Julianus very properly lays down in the Forty-third Book that the stipulation for double damages becomes operative whenever the property is lost in such a way that the purchaser will not be entitled to it on account of the eviction itself. 2Therefore, he says where a controversy arises with reference to the ownership of a slave, and the purchaser appoints the vendor his agent, and the latter having been defeated, becomes liable for damages; the stipulation for double the amount does not become operative, because the vendor, who is at the same time an agent of the purchaser, has no right of action on mandate to enable him to recover the amount of the damages from the purchaser. Hence, since the purchaser has lost neither property nor money, there is no necessity for the stipulation to be enforced; although, if he had been defeated after issue had been joined, and had paid the damages assessed, it is held that the stipulation would become operative; and this Julianus himself stated in the same book, for the buyer is not considered to have in his possession a slave of whom he would have been deprived by his adversary if he had not paid the price. For the buyer acquires the right to the slave rather through the second purchase, that is to say, through the payment of his estimated value in court, than by the first transaction. 3Julianus also says in the same book, that if, where issue has been joined in a case, and the slave escapes through the negligence of the possessor, the latter should have judgment rendered against him; but he cannot immediately have recourse to the vendor, and must proceed under the stipulation for double damages, because, in the meantime, he was not entitled to the slave through having security against eviction, but on account of his flight. It is evident, he says, that when he obtained possession of the fugitive, the stipulation became operative. For if the slave had escaped without the fault of the possessor, he would then be released, if security was given, and the stipulation would not become operative, unless he should restore the slave after he had been caught. Therefore, where he tenders the amount of damages, this will be sufficient to enable him to hold the slave, but where he gives security, this cannot be done before he returns him.

22Pomponius, On Plautius, Book I. Where a guardian pays damages assessed on account of property purchased for his ward, not out of the money belonging to the latter, but out of his own property; a stipulation against eviction becomes operative in favor of the ward as against the vendor. 1Where a woman takes security against eviction from a tract of land which she purchased, and gives the same land by way of dowry, and someone afterwards deprives her husband of it by means of an action; the woman can immediately proceed against the surety on the ground of purchase, as having reduced the amount of her dowry, or rendered it worthless; provided the husband tendered to the claimant the value of the said property.

23Ulpianus, On Sabinus, Book XXIX. Where, however, the land is lost by eviction after the death of the woman, recourse must be had to the stipulation for double damages, because the husband can bring an action based on the promise of the dowry, against the heirs of the woman, and they themselves can proceed on the ground of the stipulation.

24Africanus, Questions, Book VI. Still, we cannot say that the result will be that the stipulation becomes operative if the woman is about to marry the true owner of the slave, and gives him as dowry, even though she will, in this instance, not have any dowry; since, indeed, while it is true that she has no right to the slave, yet it is not a fact that she has been deprived of him by a judicial proceeding; and she will, nevertheless, be entitled to an action on purchase against the vendor.

25Ad Dig. 21,2,25ROHGE, Bd. 11 (1874), Nr. 67, S. 202: Verlust der Redhibitionsbefugnis durch Veräußerung, Verbrauch, Verfügung über die gekaufte Sache.ROHGE, Bd. 16 (1875), Nr. 81, S. 321: Folgen der Verarbeitung bezw. Umgestaltung eines Theils der gekauften Waare mit erkennbarem Fehler bezüglich der Redhibitionsbefugnis.Ulpianus, On Sabinus, Book XXIX. If you manumit a slave on whose account you have stipulated for double damages, you can recover nothing on account of the stipulation; because you are not deprived of anything to which you are entitled, since you yourself have voluntarily relinquished it.

26Paulus, On Sabinus, Book V. The purchaser will be entitled to an action on sale, on the ground that he did not make him his freedman, if the vendor was aware that he was selling a slave belonging to another. Where, however, the purchaser was compelled to manumit the slave on account of a trust, he will be entitled to an action on purchase.

27Pomponius, On Sabinus, Book XI. We adopt the rule that where exceptions are interposed against the purchaser, and they prevail, the vendor will not be liable; but where they have reference to the act of the vendor, the contrary rule applies. For it is certain that the purchaser will have no right to an action either on purchase, or under the stipulation for double, or even simple damages, where an exception based on his own act is successfully pleaded.

28Ulpianus, On the Edict, Book LXXXI. But if exceptions based on the acts of both vendor and purchaser are pleaded, it is a matter of importance to ascertain on account of which exception the judge will render his decision, and hence whether the stipulation is operative or not.

29Pomponius, On Sabinus, Book XI. If you should sell me property belonging to another, and I should repurchase it from the true owner; Celsus, the son, says that the opinion of Nerva is not correct; namely, that you, in bringing an action on sale, can recover the price from me; because I was, as it were, entitled to the property, since it is not agreeable to good faith that I should hold property under a title belonging to someone else. 1Where a stipulator for double damages instead of being the possessor becomes the claimant and loses his case, if he had been in possession of the property he could have retained it, but he cannot legally bring suit to recover it, as the promisor of double damages will be secure by operation of law, or he can undoubtedly protect himself by an exception on the ground of fraud. This, however, is the case only where possession was lost through the negligence, or with the consent of the stipulator for double damages. 2The vendor can be notified to appear at any time whatsoever when the matter is brought up in court, because a certain date is not fixed by this stipulation; provided, however, this is not done before the time that judgment is rendered.

30The Same, On Sabinus, Book XIX. Where he who stipulated with the purchaser that the slave was free from liability for theft or damages, and he from whom the slave stole the property becomes the heir of the purchaser, he will immediately be entitled to an action under the stipulation, just as if he himself had made good the amount of a theft committed against someone else.

31Ulpianus, On Sabinus, Book XLII. Where anyone makes a promise to the stipulating party “That the slave is sound, is not a thief, is not a violator of graves, etc.,” the stipulation seems to some authorities to be void, because if the slave is of this character what is promised is impossible, and if he is not, the promise is without effect. I think that the following stipulation is more correct, namely: “That the slave is not a thief, is not a violator of graves, and is sound,” and this is in conformity with law, for it contains what it is for the interest of the purchaser of the slave to have and not to have. But if a guarantee is added to any of these statements the stipulation will be still more valid; otherwise the stipulation introduced by the Ædiles will be void, because no rational man would approve of it.

32The Same, On Sabinus, Book XLVI. For the reason that it is held that, where several matters are set forth in one stipulation, there are several stipulations; let us see whether this applies to one calling for double damages, for example, where anyone stipulates that the slave is not in the habit of running away, and is not a wanderer, and the other things which are mentioned in the Edict of the Curule Ædiles; is there one stipulation, or several, in this instance? It is reasonable to hold that there are several. 1Ad Dig. 21,2,32,1ROHGE, Bd. 15 (1875), Nr. 93, S. 328: Berechnung des Minderwerths im Falle der exceptio quanti minoris.Hence what Julianus states in the Fifteenth Book of the Digest is correct. For he says that, where a purchaser brings an action for the depreciation in value of a slave because he was in the habit of running away, and then brings another on account of some disease with which he was afflicted; care must be taken to prevent the purchaser from obtaining a profit, and recovering damages twice for the same defect. Let us suppose that a slave was purchased for ten aurei, and that the buyer could have acquired him for at least two less, if he had only known that he was in the habit of running away; and, after recovering this sum because of said habit, he afterwards discovers that he is not sound, and that he could have purchased him for two aurei less, if he had been aware that he was diseased. He should, therefore, again recover two aurei, for if he had brought suit at the same time on both causes of action, he could have recovered four, since he could have purchased the slave who was not sound, and who was in the habit of running away, for only six aurei. In accordance to principle, he can proceed frequently under the stipulation, for he does not do so merely on account of one stipulation, but on account of several.

33The Same, On Sabinus, Book LI. If I purchase a slave and sell him, and afterwards have judgment rendered against me in favor of the purchaser, because I could not deliver the slave on account of eviction, the stipulation becomes operative.

34Pomponius, On Sabinus, Book XXVII. If you buy a female slave on condition that she shall not be prostituted, and if she is she shall become free, and you violate the condition of the sale, the slave will obtain her freedom, and you will be in the same position as if you had manumitted her, and therefore you will have no recourse against the vendor. 1Where proceedings have been instituted against me for the partition of property in a slave, and the latter is adjudged to my adversary for the reason that he proved that the said slave was held in common, I will be entitled to an action for double damages under the stipulation, because it makes no difference by what kind of a judgment eviction is obtained, if I have no right to the property. 2A stipulation for double damages does not merely include eviction where anyone claims and recovers the ownership of property, but also applies where proceedings are instituted under the Servian Action.

35Paulus, On the Edict of the Curule Ædiles, Book II. Property is held to have been obtained by a creditor through eviction, where the expectation of holding it has been almost lost by the purchaser. Therefore, where eviction took place under the Servian Action, the stipulation in fact becomes operative; but as, where the money is paid by the debtor, the purchaser can hold the slave when the pledge is released, if the vendor is sued, he can avail himself of an exception on the ground of bad faith.

36The Same, On the Edict, Book XXIX. Where a ship or a house has been purchased, the stones of the foundation and the different planks are not understood to have been separately bought; and therefore the vendor will not be liable on the ground of eviction, as he would be in case a portion of the ship or of the house had been recovered through proof of a better title.

37Ulpianus, On the Edict, Book XXXII. Double the amount of the price must be promised by the vendor to the purchaser, unless some other arrangement is made, still, it is not necessary for him to give security, unless a special agreement is entered into to that effect, but the vendor will only be liable. 1Moreover, where he stated that double damages must be promised, it should be understood that this does not apply to every kind of transaction, but only to such where the articles sold are of great value; as, for instance, jewels, or precious ornaments, or silken garments, or anything else which is not sold at a low price. By the Curule Edict the vendor is also ordered to furnish security in the case of the sale of a slave. 2Where the buyer through mistake stipulates for simple instead of double damages, and he is deprived of the property by eviction, Neratius says that he can recover the deficiency in the stipulation by means of an action on purchase, provided the buyer does everything required by the stipulation. For if he does not do so, he can, only in an action on purchase, compel the vendor to promise him what was omitted in the stipulation in the first place.

38The Same, Disputations, Book II. Where a creditor has sold a pledge it may be considered whether, in case of eviction, the vendor can in a suit based on the sale, be compelled to assign the right of action which he has against the debtor. He is, however, entitled to a counter-action on pledge, and the better opinion is that he must make the assignment, for does it not seem more just to him that the purchaser should at least obtain this advantage, which he can do without causing any expense to the creditor?

39Julianus, Digest, Book LVII. Ad Dig. 21,2,39 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 120, Note 3.A minor under twenty-five years of age sold a tract of land to Titius, and Titius sold it to Seius. The minor alleged that he had been overreached in the sale, and obtained a judicial inquiry, not only against Titius, but against Seius as well. Seius asked the Prætor to grant him an equitable action on the stipulation, against Titius, on account of the eviction. I thought it should be granted, and gave it as my opinion that Seius only demanded what was proper, for if the land should be taken away from him by a decision of the Prætor, it would be but just for restitution to be given him in case of eviction by the same Prætor. 1If your slave should buy another, and then sell him to Titius, after promising double his value in case of eviction, and you also should stipulate with the vendor of the slave, and Titius should claim the slave, and having brought suit is defeated on the ground that your slave could not transfer property in another slave without your consent, Titius would be entitled to the Publician Action, and on this account a stipulation for double damages would not become operative as far as he was concerned. Wherefore, if you bring suit under the stipulation, you can be barred by an exception, on the ground of bad faith, interposed by your vendor. The case would be different, however, if the said slave purchased another, and, after stipulating for double damages, sold him; for if the purchaser was deprived of him by eviction, the owner will be entitled to an action against the vendor to recover the entire sum, but he will only have a right of action against the purchaser to the extent of the peculium. Moreover, the purchaser should notify the slave and not his master, of the eviction, for where he is deprived of the slave through a better title, he can lawfully bring an action on the peculium. If, however, the slave should die, then his master must be notified. 2If you purchase two-thirds of a tract of land from me, and one-third from Titius, and then someone claims half of the land from you, if the half which is claimed from you is included in the two-thirds which you have received from me, Titius will not be liable. Where, however, the claim is for the third which Titius has sold you, and the sixth is included in the two-thirds which you have received from me, Titius will be liable to you for a third, and I for a sixth, in case of eviction. 3A father, aware of his responsibility, sold his son whom he had under his control to a purchaser who was ignorant of the fact, and the question arose whether he was liable in case of eviction. The answer was where anyone knowingly or ignorantly sells a freeman as a slave, he is liable in case of eviction. Hence the father who sold his son as a slave is liable on the ground of eviction. 4Where a party sells and delivers a slave who is to become free under some condition, and does not state that this is the case, he will be liable in case of eviction, without reference to lapse of time. 5Where anyone sells and delivers a slave, and states that the usufruct in him belongs to Seius, while, in fact, it belongs to Sempronius, and Sempronius claims the usufruct; he will be liable just as if in delivering the property he had stated that he was not liable to Seius on account of the usufruct, and if the usufruct actually should belong to Seius, but was bequeathed in such a way that when it ceased to belong to him, it would become the property of Sempronius, and Sempronius should sue for it, he will be liable; but if Seius should bring the action he could legally escape responsibility.

40The Same, Digest, Book LVIII. Where a party who has taken security from me against eviction bequeaths the land to me as heir, the sureties will be immediately released, because even though he to whom it was bequeathed has to a certain extent been evicted, still, no action against the sureties will lie.

41Paulus, On the Edict of the Curule Ædiles, Book II. Where I sold a slave and promised double his value to the purchaser in case of eviction, and he had already bound himself to me by the same stipulation; and I afterwards become his heir, and the slave is lost through a superior title, the stipulation in no respect becomes operative. I am not held to have been deprived of him by eviction, since I sold him, nor was he evicted from the party to whom I made the guarantee, since I could, with very little propriety, be said to be liable to pay myself double damages. 1Again, if the purchaser should become the heir of the owner of the slave, as the slave cannot be evicted from him, nor can he be held to evict him from himself, the stipulation for double the amount of his value will not become operative. Therefore, in these cases an action on sale should be brought. 2Where anyone purchases a tract of land, and takes security against eviction, and sells the said land to a purchaser who becomes his heir; or, on the other hand, the purchaser becomes the heir of the vendor, in case the land is lost by eviction, the question arises whether suit can be brought against the sureties. I think that, in either case, the sureties will be liable, since when a debtor becomes the heir of his creditor, a kind of an account is opened between the heir and the estate, and the estate is understood to have become larger for the debtor, since the money which was owing to the estate has been paid and the property of the heir is diminished to that extent. On the other hand, when a creditor becomes the heir of his debtor, the assets of the estate are held to be diminished, just as if the estate itself had paid the creditor. Therefore, whether he who had taken security against eviction himself made the sale to the purchaser, or whether the latter becomes the heir of the vendor, the sureties will be liable; and if the estates of the vendor and the purchaser should pass into the hands of the same person, he can bring an action against the sureties.

42Paulus, On the Edict, Book LIII. Where a female slave, who is pregnant, is sold and delivered, and her offspring is evicted, the vendor cannot be sued on the ground of eviction because the offspring was sold.

43Julianus, Digest, Book LVIII. The purchaser of a cow, whose calf born after the sale was evicted, cannot bring an action for double damages under the stipulation, because neither the property itself, nor the usufruct in the same, was evicted; for where we say that a calf is the fruit of the cow, we mean, not the right, but the thing itself, just as we rightly designate grain and wine as the fruit of land, since it is settled that these things are not properly called usufruct.

44Alfenus, Epitomes of the Digest by Paulus, Book II. It is held that a boat is no part of a ship and has no connection with it, for a boat is itself a little vessel; but everything which is attached to a ship, as, for instance, the rudder, the mast, the yards and the sails, are, as it were, the members of the ship.

45The Same, Epitomes of the Digest by Paulus, Book IV. Where a person sold and delivered a tract of land containing a hundred jugera, he showed a tract of much greater extent to the purchaser, if the latter should, in consequence, be evicted from a part of the land, the vendor will be obliged to make good the amount in proportion to the quality of the soil; even though the remaining portion may include a hundred jugera.

46Africanus, Questions, Book VI. You sold me a tract of land the usufruct of which belonged to Attius, but you did not mention that he was entitled to the usufruct. I sold the said tract to Mævius, after having reserved the usufruct. Attius was deprived of his civil rights, and it was held that the usufruct reverted to the property, for it could not vest in me at a time when it belonged to someone else. I could, however, bring suit against you, as vendor, on the ground of eviction, because it is just that I should be in the position in which I had a right to be, if the usufruct was then separated from the land. 1If you should grant me a right of way through the premises of another, it is held that you are liable in case of eviction; for wherever a right of way is granted through property belonging to the party who gives it, or whether it is granted through the land of another, he assumes liability for eviction. 2If I should sell you Stichus, and state that he is to be free on a certain condition, and that his manumission was dependent on the arrival of a ship from Asia, while the condition really was that if Titius should become consul he should be manumitted; the question arises if the ship should first come from Asia, and Titius should afterwards become consul, and the ownership of the slave should be lost through his obtaining his freedom; would I be liable on the ground of eviction? The answer was that I would not be liable, because the purchaser was guilty of bad faith, as the condition was fulfilled before he lost the property by eviction. 3Moreover, if I stated that a slave would be free after two years, while, in fact, he ought to become free at the end of a year, and after the lapse of two years he obtains his freedom; or if I should say that he was entitled to his freedom on the payment of five aurei, while, in reality, he had been ordered to pay ten, and, the ten having been paid, he gains his freedom; the better opinion is that in these instances I will not be liable.

47The Same, Questions, Book VIII. If I purchase two slaves from you, each for five aurei, and one of them is evicted, there is no doubt that I can lawfully proceed against you in an action of purchase, on the ground of eviction, even though the remaining slave is worth ten aurei; nor does it make any difference whether I purchase them separately, or both at once.

48Neratius, Parchments, Book VI. Where a tract of land is bought as being absolutely unincumbered, and the purchaser obtains anything from the vendor on account of some servitude to which the land was subject, and afterwards the entire tract is evicted, the vendor should refund the amount remaining from the double damages, on account of said eviction. For, if we do not observe this rule, the vendor can recover more than double the sum paid for the land, in case of eviction; in the first place, on account of certain servitudes, and afterwards on the ground of ownership.

49Gaius, On the Provincial Edict, Book VII. Where an usufruct is demanded from the purchaser, he ought to notify the vendor of it; just as he should do from whom a portion of the property is sought to be recovered.

50Ulpianus, On the Edict, Book XXV. Where pledges are sold by officers of the Prætor, in consequence of extraordinary judgments, no one has ever said that an action should be granted against them on the ground of eviction. If, however, they fraudulently permitted the property to be sold for an insignificant sum, then an action will be granted against them in favor of the owner of the property, on the ground of fraud.

51The Same, On the Edict, Book LXXX. Where the purchaser of property loses his case through the ignorance or mistake of the judge, we deny that the vendor shall suffer the loss, as what difference does it make whether the property was lost through the baseness or folly of the judge? For the vendor should not suffer the injury done to the purchaser. 1If Titius should sell Stichus, who was to be free after his death, and Stichus obtains his freedom in consequence, will a stipulation made with reference to eviction be valid? Julianus says that the stipulation becomes operative, and even if the purchaser was unable in this instance to notify Titius of the eviction, he can still notify his heir. 2Where anyone sells a tract of land, and the vendor himself is buried there by his heir, with the consent of the purchaser, an action on eviction cannot be brought; for under these circumstances the purchaser will lose the property. 3It is not strange, however, that, where a slave is evicted, the heir should be liable on account of the eviction, although the deceased may not have been called to account in this way; for, in some instances, a greater obligation will arise either against or in favor of the heir than would have affected the deceased; as, for example, where a slave was appointed heir after the death of the purchaser, and entered upon the estate by order of the heir of the latter, for he must surrender the estate in an action on purchase, although a prætorian action could only have been brought against the deceased in order to compel the slave to be delivered. 4Where several parties are liable to me for the entire amount in case of eviction, and then, after eviction has taken place, I proceed against one of them, Labeo says that, if I sue the others, I should be barred by an exception.

52The Same, On the Edict, Book LXXXI. It must be remembered that where a stipulation for double damages has been entered into, it makes no difference whether it can become operative on account of the sale, or because of any other transaction.

53Paulus, On the Edict, Book LXXVII. If any portion of land which has been transferred should be evicted, and each jugerum of the same has been sold for a certain price, then whatever has been evicted should be made good, not with reference to its quality, but in proportion to the amount for which it was sold, even if the parts which have been evicted are better than the remainder. 1If when the purchaser could have notified the vendor, he did not do so, and he should be defeated in court because he did not obtain information which he required, he will be held to have been guilty of bad faith on this account, and he cannot proceed under the stipulation.

54Gaius, On the Provincial Edict, Book XXVII. Where anyone sells property belonging to another after title by prescription or usucaption has been acquired through lapse of time, he ceases to be liable to the purchaser for eviction. 1If an heir should sell a slave who was ordered to be free under the condition of paying a certain sum of money, and he states that the amount mentioned in the condition is greater than he was directed to pay, he will be liable to an action on purchase, provided the condition is such that it would have passed to the purchaser, that is to say, if the slave was directed to pay the heir; for if he was directed to pay anyone else, even though he may have stated the amount of money correctly, still, if he did not notify the purchaser that he was directed to make payment to another, he will be liable on the ground of eviction.

55Ulpianus, On the Edict of the Curule Ædiles, Book II. Where judgment was rendered against a purchaser because he failed to appear, the stipulation does not become operative, and he is held to have been defeated rather on account of his absence, than because he had a bad case. But what if he against whom judgment was rendered was not present at the trial, but another party was present and conducted his case? What shall we decide? For example, where issue has been joined with a ward who was granted authority by his guardian, but the ward being absent, the guardian conducted the suit, and judgment was rendered against him; why should we not in this instance hold that the stipulation was operative, for it is evident that the case was tried? It is sufficient if the case was tried by the party who had the right to do so. 1The vendor should be notified if he is present, but if he is absent, or if, being present, he does something to prevent his being notified, the stipulation will become operative.

56Paulus, On the Edict of the Curule Ædiles, Book II. Where it was stated to the vendor that he must bind himself to pay either simple, triple, or quadruple damages, he can be sued in an action on purchase without reference to lapse of time; for he who pays double damages is not compelled to give security, as is generally supposed, but the mere promise is sufficient, unless something else should be agreed upon. 1If I submit a question to arbitration, and an award is rendered against me, an action on the ground of eviction should not be granted me against the vendor, for I have not acted from necessity. 2Where a slave is sold under a stipulation for double damages, if he should be evicted, an addition with reference to the eviction of a share of said slave will be necessary, for a slave cannot be held to be evicted where only a share in him is involved. 3If the purchaser was able to acquire title by usucaption and does not do so, he is considered to have done this through his own fault, and hence, if the slave is evicted, the vendor will not be liable. 4If notice is given to the agent of the promisor (and the latter is present at the time), and has bound himself with reference to eviction, and is not ignorant of the fact, the promisor will still be liable. 5He also will be liable who took measures to avoid being notified. 6Where, however, the purchaser was not able to ascertain the whereabouts of the vendor, although the latter did nothing to conceal himself, the stipulation will, nevertheless, become operative. 7Trebatius says that it has been established as equitable that, in case of a stipulation for double damages, a ward can be notified without the authority of his guardian, if the latter does not appear.

57Gaius, On the Edict of the Curule Ædiles, Book II. A purchaser is held to have a right to possession of the property where the party who deprived him of the same by eviction dies without leaving a successor, before the property is taken away or removed, provided it does not belong to the Treasury, or is not liable to be sold by private creditors; for then the purchaser would not be entitled to any action under the stipulation, because he has a right to hold the property. 1Since this is the case, let us see whether it must also be held that an action does not arise on account of the stipulation, where the property was donated or bequeathed to the purchaser by the party who defeated him. This is certainly the case where he donated or bequeathed the property before he removed it; otherwise, when the stipulation has once become operative it cannot be annulled.

58Javolenus, On Plautius, Book I. An heir delivered a slave who was not expressly bequeathed, and gave a guarantee against fraud and the slave was afterwards evicted. The legatee could bring an action on the will against the heir, even though the latter was ignorant that the slave was the property of another.

59Pomponius, On Plautius, Book II. Where property which I purchased from Titius is bequeathed by me, and the legatee is sued by the owner of the same, he cannot notify my vendor of the eviction, unless the rights of action should be assigned to him, or where he has the property secured by hypothecation.

60Javolenus, On Plautius, Book II. Where it is not stated at the time of the sale to what extent the vendor should be liable in case of eviction, he will not be liable on this ground for more than simple damages, and for the amount of the interest of the purchaser dependent upon the nature of the action of sale.

61Marcellus, Digest, Book VIII. Where I purchased something from you, and sold it to Titius, and you deliver it to Titius with my consent, it is settled that you will be liable to me in case of eviction, just as if I had received the property and had delivered it myself.

62Celsus, Digest, Book XXVII. If I should sell you any property which is in your possession, it is settled that I will be liable on the ground of eviction, for the reason that it is considered the same as delivered. 1Where several heirs are left by a party who sold me property, the obligation with reference to eviction applies to all of them and all of them should be notified, and all ought to defend the suit. If they purposely do not appear in court, or one of them appears for all in the case, all of them will be successful, or will be defeated on account of the effect of the notice, and the absence above mentioned, and I can legally proceed against the others, because they were defeated on the ground of eviction. 2If you should sell me a tract of land with the reservation of the usufruct in the same, and the said usufruct belonged to Titius, to whom it had been left during his lifetime, and I am ignorant of the fact, and Titius should forfeit his civil rights, but afterwards having recovered them, should bring suit claiming that he was entitled to the right of the use and enjoyment of the property, an action under the stipulation, on the ground of eviction, will lie in my favor against you; although if what you stated to me at the time of the sale were true, I could very properly deny that Titius was entitled to the use and enjoyment of said property.

63Modestinus, Digest, Book V. Herennius Modestinus was of the opinion that the purchaser, in bringing an action on sale, would not be barred because notice of the eviction had not been served upon him, if the necessity for notifying him had been released by the agreement. 1Gaia Seia purchased a tract of land from Lucius Titius, and proceedings having been instituted against her in the name of the Treasury, she had recourse to the vendor, and eviction having taken place, she was deprived of the land which was adjudged to the Treasury, the vendor being present at the time. The question arises, as the purchaser did not appeal, whether she can sue the vendor? Herennius Modestinus answered that if the land belonged to another when it was sold, or if it was hypothecated at the time it was evicted, there is no reason why the purchaser should not be entitled to an action against the vendor. 2Herennius Modestinus gave it as his opinion that if the purchaser appealed, and lost a good case through prescription by his own fault, he cannot have recourse to the vendor.

64Papinianus, Questions, Book VII. A river swept away two hundred jugera from a tract of land which contained a thousand when it was transferred. If two hundred jugera of the undivided remainder should afterwards be evicted, the stipulation for double damages will apply to the fifth, and not to the fourth part of said land; for the loss of what was swept away must be borne by the purchaser, and not by the vendor. Where the entire tract which was diminished by the river is evicted, the obligation providing for eviction will not be lessened by law, any more than if a tract of land or a slave should become depreciated in value through neglect; as, on the other hand, the amount for which the vendor is liable, in case of eviction, will not be increased if the property should have been improved. 1Where the amount of land which was transferred remains unimpaired, and two hundred jugera are added to the same by alluvion, and afterwards a fifth part of the entire undivided tract is evicted, the fifth part alone must be made good by the vendor; just as would be the case if two hundred jugera of the thousand which had been delivered were evicted, because the vendor does not guarantee any loss due to alluvial deposit. 2Where two hundred jugera were lost out of a thousand which have been conveyed, and afterwards two hundred more were added by alluvium to another part of the tract, and then an undivided fifth part of the entire tract should be evicted; the question arose for what proportion will the vendor be liable. I stated that, according to what has been previously laid down, the vendor will not be liable either for the fifth part, or the fourth part of the thousand jugera, on the ground of eviction; but will only be liable if merely a hundred and sixty out of the eight hundred jugera should be evicted, for the remaining forty which have been taken away from the entire tract should be understood to belong to the addition to the land, pro rata. 3Again, where a certain part of a tract of land, which is separate, is evicted, although a certain number of jugera were conveyed, still, the amount evicted must be made good, not in proportion to the quantity of the land, but with reference to its quality. 4Where a party who owned a half interest in an undivided jugerum of land, sold and delivered it, he did not, according to the opinion of the authorities, convey the entire ownership, but only the undivided half of the same; just as if he had transferred a certain tract of land or a field in this way.

65The Same, Questions, Book VIII. Certain heirs sold property belonging to the estate, which had been pledged, and bound themselves to the extent of their respective shares in case of eviction. One of them released the pledge so far as his share was concerned, and the creditor acquired the property by eviction; the question then arose whether suit could be brought against both heirs. This was held to be the case, on account of the indivisible nature of the pledge, and there did not seem to be any remedy which could be applied, in order that, by interposing an exception on the ground of fraud, the rights of action might be assigned to the heir who paid the money to the creditor; because it could be asserted that both the parties had become liable for the entire indebtedness, but they would be entitled to an action for partition of the estate on this account. For what difference does it make if one of heirs should entirely release the pledge, or whether he should only do so with reference to his share, since the negligence of one heir should not be injurious to his co-heir?

66The Same, Questions, Book XXVIII. If the vendor should notify the purchaser to institute proceedings under the Publician Action, or under the action which has been framed with reference to land subject to tax, and the purchaser has neglected to do this, his bad faith will only injure himself, and the stipulation will not become operative. This rule does not apply to the Servian Action, for although it is a real action, still, it deprives the party of the bare possession, and after the money has been paid to the vendor it will be disposed of; wherefore, the result is that the purchaser cannot bring it in his own name. 1Where anyone who is absent on public business brings suit to recover a tract of land, the possessor can avail himself of an equitable action in case of eviction. This principle also applies where a party who has been deprived of his property by a soldier brings suit, for the same equity demands that the action for restitution, in case of eviction, should be granted to the purchaser. 2If the second purchaser of a slave should appoint the vendor, who was himself the first purchaser, his attorney to conduct the case, and the slave was not given up, and a decision was rendered against him; whatever the said attorney may have paid on the judgment, just as if he was acting in his own behalf, cannot be recovered under the stipulation, but, for the reason that the loss resulting from eviction must be personally borne by the purchaser, who could recover nothing in an action on mandate, he can legally bring an action on sale for the recovery of the amount of damages assessed by the court. 3Where partition has been effected among co-heirs and the agent of one who is absent appears for him, and the principal of the latter ratifies his act; the same action will be granted against the principal, in case the land is evicted, which would have been granted against him who transacted his business while he was absent, and the plaintiff can recover the amount of his interest, that is to say, the amount by which the property was diminished or increased, based upon what it was worth at the time the partition was made, according as the land was rendered more or less valuable.

67The Same, Opinions, Book X. After the eviction of a slave whom the real owner took away from the purchaser, the vendor cannot properly make a defence by afterwards offering the same slave to avoid indemnifying the purchaser for his interest.

68The Same, Opinions, Book XI. Ad Dig. 21,2,68 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 237, Note 22.Where a pledge is sold under the condition that the creditor will not be liable for anything in case of eviction, even though the purchaser should not pay the price, but gives security to the vendor; if eviction takes place, the purchaser will not be entitled to an exception to avoid paying the price of the property. 1Where a creditor has preferred to take a claim owned by the debtor by way of substitution for the money due, and the pledges taken by the former creditor are evicted; he will be entitled to no action against the debtor whom he released.

69Scævola, Questions, Book II. Where the vendor reserves the question of freedom in the sale of a slave, he will not be liable on the ground of eviction, if at the time that the slave was delivered he should become free, or should obtain his liberty when a condition prescribed by will is fulfilled. 1Where a vendor, in delivering a slave, states that he is to be free on a certain condition, it is understood that only the kind of freedom is referred to which can result from the fulfillment of a condition already prescribed by a will, and therefore if freedom was conferred at once by the will, and the vendor says that the slave will be liberated under a condition, he will be liable in case of eviction. 2On the other hand, where anyone sells a slave who has the prospect of freedom, and states the condition under which he will be entitled to be free, and in doing so causes his condition to be considered worse, because he would not be held to have excepted every condition under which the slave would be free, but only that which he indicated; as, for instance, if anyone should say that the slave was ordered to pay ten aurei to become free, and he should obtain his liberty after the lapse of a year, because his freedom had been granted in the following terms: “Let Stichus be free after a year,” the vendor will be liable in case of eviction. 3But what if a slave whom the vendor had declared would be free on the payment of twenty aurei had been, in fact, ordered to pay ten; would the vendor be considered to have told a falsehood with reference to the condition? It is true that he made a false statement with reference to the condition, and therefore certain jurists have held that, in this instance also, the stipulation would become operative in case of eviction. The authority of Servius, however, prevailed, who thought that under these circumstances an action on purchase would lie; because it was his opinion that he who stated that the slave had been ordered to pay twenty aurei had excepted the condition which depended upon the payment. 4A slave was ordered to be free after his accounts had been rendered; the heir sold and delivered him, and stated that he had been directed to pay a hundred aurei for his freedom. If nothing remained which the slave was obliged to pay when he rendered his accounts, he therefore became free as soon as the estate was entered upon, and liability for eviction was contracted for the reason that a man who was free was sold as one whose liberty was dependent on a condition. If the slave was a defaulter to the amount of a hundred aurei, it may be held that the heir did not tell a falsehood; and as the slave was ordered to render his accounts, it is understood that he was directed to make good the amount of money collected which remained unpaid. The result of this is, that, if he was in default for less than a hundred aurei, for example, only fifty, so that he would obtain his freedom when he paid this sum, the purchaser will be entitled to an action on sale to recover the remaining fifty aurei. 5Where anyone, at the time of the sale, states indefinitely that a slave will be conditionally free, but conceals the condition of his freedom, he will be liable to an action on sale if the purchaser is not aware of the fact; for, in this instance, it is settled that he who says that a slave has a prospect of freedom, and does not mention any condition, will indeed not be liable on the ground of eviction, if the condition is fulfilled, and the slave obtains his freedom; but he will be liable to an action on sale provided he concealed the condition which he knew had been prescribed; just as where a party sells a tract of land, and being aware that a certain servitude was due from it, stated indefinitely, “that all rights of way of every description would continue to be enjoyed by those entitled to them,” is properly held to have released himself from liability for eviction, but, because he deceived the purchaser, he will be liable to an action on sale. 6Where the amount stated to be included in a tract of land which is sold falls short, a part of the price is deducted in proportion to the value of all the jugera which the land was alleged to contain.

70Paulus, Questions, Book V. Where property is evicted an action on purchase will not only lie for the recovery of the price, but also for the amount of the interest of the buyer. Hence, if the property has become less valuable, the loss must be sustained by the buyer.

71The Same, Questions, Book XVI. A father gave a tract of land to his daughter by way of dowry. This having been evicted, a doubt arises (and not without reason) as to whether an action on purchase will lie, or one for double damages based on the stipulation; just as if the father himself had suffered loss. For as the dowry belongs to the woman, it cannot be said to be the property of the father, nor can she be compelled, during the continuation of the marriage, to share with her brothers the dowry which is derived from him. Let us see, however, whether it can not be said with greater probability that under these circumstances the stipulation becomes operative; for it is to the interest of the father that his daughter should be endowed, and if she remains under his control, he may have the expectation of sometime recovering the dowry. But if she has been emancipated, it can hardly be maintained that the stipulation immediately becomes operative, because in one instance the dowry may revert to him. Therefore, can he bring an action against the vendor, since, if his daughter should die during marriage, he will be able to recover the dowry in case the land should not be evicted? Or, in this case, has the father an interest in having his daughter endowed, so that he can at once bring suit against the promisor? This opinion is the better one, as paternal affection is involved in the matter.

72Callistratus, Questions, Book II. Where several tracts of land are sold and expressly and specifically described in one and the same instrument of sale, each of these is not held to be a part of any other, but all the tracts are included in a single purchase. And, just as if anyone should sell several slaves by a single bill of sale, the action for eviction will include each head of said slaves individually; and just as also where a single purchase is made of several other articles, and only one bill of sale is drawn up, there are, however, as many actions for eviction as there are different kinds of property included in the purchase; so, in the case stated, the purchaser certainly will not be prohibited from bringing suit against the vendor if one of said tracts is evicted, because the transaction included several pieces of land conveyed by one instrument of sale.

73Paulus, Opinions, Book VII. Seia gave, by way of dowry, the Mævian and Seian estates, together with others. Her husband, Titius, during the life of Seia, kept possession of said tracts without any dispute arising, but after the death of Seia, Sempronia, who was her heir, raised a question as to the ownership of the land. I ask, as Sempronia herself was the heir of Seia, whether she could legally make such a claim? Paulus answered that she could do so in her own right, but could not, as the heir of Seia, claim the property in question; but if the land was evicted, the heir of Seia could sue Sempronia, or she could be barred by an exception on the ground of bad faith.

74Hermogenianus, Epitomes of Law, Book II. If it should be agreed that more or less than the price should be paid, in case of eviction, the parties must abide by this agreement. 1If, by order of court, a pledge taken to secure the execution of a judgment is sold, and it is afterwards evicted, an action on purchase will be granted against the defendant who was released by payment of the price, not for the amount of the interest of the buyer, but for the price alone and the interest on the same to be paid out of the profits, provided the buyer was not required to refund this money to him who obtained the property by eviction. 2Where a claim is formally made, the vendor can be sued, not for the recovery of the purchase-money, but to force him to defend the action. 3Ad Dig. 21,2,74,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 397, Note 1.Where anyone sells a claim without a guarantee, he can only be compelled to show that it exists, and not that anything can be collected on it, but he will be responsible for fraud.

75Venuleius, Stipulations, Book XVI. With reference to rural servitudes, where they tacitly follow the land, and are recovered by a third party, Quintus Mucius and Sabinus hold that the vendor cannot be held liable for eviction, for no one is liable on this ground in cases where there is a tacit accession to property; unless the land is conveyed as absolutely and entirely unincumbered, for then it should be warranted to be free from all servitudes. If, however, the purchaser demands a right of way or a driveway, the vendor cannot be held liable, unless he expressly stated that a right of way of some description was accessory to the property, for then he who made the statement will be liable. The opinion of Quintus Mucius, who stated that a party who conveys land as absolutely and entirely unincumbered warrants it to be free from every servitude, is correct; for other servitudes are not due unless it has been expressly stated by the vendor that they are accessories.

76The Same, Stipulations, Book XVII. If you sell me property belonging to another, and I abandon the same, it is settled that my power to act, that is to say, my right to bring suit on account of eviction, is lost.