1Gaius, On the Provincial Edict, Book VI. An estate may belong to us either by the ancient or by the recent law; by the ancient law in accordance with the provisions of the Twelve Tables, or by a testament legally executed:

2Ulpianus, On the Edict, Book XV. Whether we become heirs directly by our own acts, or by those of others;

3Gaius, On the Provincial Edict, Book VI. For instance, if we order some person who is under our control to accept an estate to which he has been appointed heir. Where a person becomes the heir of Titius, and he himself is the heir of Seius, it may be said that, as he is the heir of Seius, so also he can claim the estate of Titius. A party can become an heir on intestacy, as, for instance, where he is the direct heir of the deceased, or an agnate, or where he manumitted the deceased, or his father manumitted him. Persons become heirs under the new law when they have a right to an inheritance derived from decrees of the Senate, or from the Constitutions of the Emperors.

4Paulus, On the Edict, Book I. If I bring an action for the recovery of an estate against a party who has possession of only that part of the same which is the subject of controversy, he will be required to surrender everything of which he subsequently obtains possession.

5Ulpianus, On the Edict, Book XIV. The Divine Pius stated in a Rescript that the possessor of an estate which was in dispute should be forbidden to dispose of any portion of it before proceedings are instituted; unless he prefers to furnish security for the entire amount of the estate, or for the restitution of the property belonging thereto. The Prætor, however, stated in an edict that: “Where proper cause was shown he would permit a part of the property to be alienated, even where such security was not given, but only the customary undertaking after proceedings had been instituted; lest, if the disposal of any of the property of an estate were prevented, it might hinder, in some way or other, other advantageous measures from being taken; as, for instance, if something was needed for funeral expenses; (for he allows a diminution of the estate on account of funeral expenses), and he will also do this when a pledge is to be sold if a sum of money is not paid within a certain time. A diminution of property belonging to an estate likewise becomes necessary to provide food for the family, and the Prætor must also permit the sale of perishable articles which in a short time would be destroyed. 1The Divine Hadrian stated in a Rescript to Trebius Sergianus that Ælius Asiaticus ought to give security for an estate, to recover; which suit had been brought against him, and then he can allege that the will is forged. This is done for the reason that the proceedings for recovery may remain in abeyance while investigation of the allegation of forgery is being made. 2The authority of the action brought for the recovery of estates is such that no other legal proceedings shall be permitted to prejudice it.

6The Same, On the Edict, Book LXXV. Where a testament is alleged to be forged, and suit is brought for a legacy under it, it must be paid after a bond has been filed, or an inquiry must be instituted to determine whether it is due. Where the testament is alleged to be forged, no legacy should be paid to the party who attacks it on this ground, if the matter has been brought into court.

7The Same, On the Edict, Book XIV. Where anyone states that he is entitled to his freedom under the terms of a will, the judge should not decide the question of his freedom, lest he may prejudice some decree rendered with reference to the will; and this law was passed by the Senate. The Divine Trajan stated in a Rescript that the trial to determine his freedom must be postponed until the suit on the ground of inofficiousness was either dismissed or concluded. 1Ad Dig. 5,3,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 584, Note 16.Trials relating to freedom are, however, only stayed where joinder of issue has taken place in a suit for inofficious testament, but if this has not been done, the trial of the question of freedom shall not be postponed. This the Divine Pius stated in a Rescript, for when a certain Licinnianus had been brought into court to ascertain his status, and, to prevent a too early decision as to what it was, he refused to appear at the trial where the question of his freedom was to be heard, saying that he would join issue on the inofficiousness of the testament, and then bring an action to recover the estate; because he alleged that both freedom and the estate were conferred upon him by the testament. The Divine Pius said that if Licinnianus had been in possession of the estate, he would have a better right to be heard, since he could then have joined issue in behalf of the estate, and it was in the discretion of the party claiming to be his master to proceed on the ground that the testament was inofficious; but Licinnianus should not remain in slavery for five years under the pretext of the inofficiousness of the will on which point he himself had not joined issue. In the end, the Emperor permitted the judge to determine generally whether the trial with reference to the will was demanded in good faith, and if he ascertained that it was, that a reasonable time should be granted; and if issue had not been joined before it elapsed, the judge should be ordered to perform his duties in the trial involving the question of freedom. 2The Divine Pius stated in a Rescript that whenever anyone is compelled to defend a case which involves his own freedom, and the inheritance of an estate, but where he does not allege that he was made free under the will, but in some other manner—as for instance, that he had been manumitted by the testator in his lifetime—then the case involving the question of freedom should not be delayed, even though it was anticipated that an action would be brought with reference to the will. He added plainly in the Rescript: “Provided the judge who was to decide the question of freedom had been notified not to hear any statements in favor of freedom which were based upon the testament”.

8Paulus, On the Edict, Book XVI. A person is not prohibited from bringing suit for the recovery of a legal estate, because he carried out the intention of the deceased at a time when he was ignorant whether the will was valid or not.

9Ulpianus, On the Edict, Book XV. It should be laid down as a regular rule that, “The only person liable to an action for the recovery of an estate is he who has a right either as heir or as possessor to a portion of the same.”

10Gaius, On the Provincial Edict, Book VI. No matter how small it may be. 1Therefore, where a party is the heir to an entire estate or to a portion of the same, he alleges that the estate is his either wholly or in part, but that only is delivered to him by order of court which his adversary had possession of; that is the whole of it, if he is the heir at all, or the share of the same to which he is entitled as heir.

11Ulpianus, On the Edict, Book XV. A person is in possession “as an heir” when he thinks himself to be the heir. But, it may be asked, how is it with him who knows that he is not the heir, and yet holds possession in that capacity? Arrianus, in the Second Book On Interdicts, is of the opinion that he is liable; and Proculus states that this is our practice, for it is held that a possessor of the property of an estate is held to possess the same in the capacity of heir. 1A depredator, in fact, holds the estate “as possessor”,

12The Same, On the Edict, Book LXVII. Who, when he is asked why he is entitled to possession will answer, “Because I am”; and will not contend that he is an heir, even by way of false representation:

13The Same, On the Edict, Book XV. Or anyone who cannot allege any right to possession; and therefore thieves and robbers are liable to an action for the recovery of an estate. 1Again, this title “as possessor” is attached and, as it were, joined to all other Titles. Hence it may be attached to the title of “as purchaser”; for if I purchase from an insane person, knowing him to be such, I hold the property “as possessor”. Also with reference to the title “as donee”, the question arises whether the party holds as possessor, for example, a wife or a husband; and we adopt the opinion of Julianus that either of them holds the property in the capacity of possessor, therefore he or she would be liable in a suit for the recovery of the estate. Again, title “by right of dower” takes the form of possession; as for instance, where I marry a girl under twenty years of age and accept property as dowry, being aware of her age. Moreover, if a legacy is paid to me on grounds which I know to be false, it is certain that I hold the property “as possessor”. 2But he who delivers an estate under a trust cannot be held liable in a suit for the recovery of the same, unless he acted fraudulently; that is to say, if he knew that it ought not to be delivered, and, nevertheless, surrendered it; for even fraud previously committed is to be considered in a suit for the recovery of an estate, since the party fraudulently relinquished possession. 3Neratius, in the Sixth Book of Parchments, says that a suit for the recovery of an estate can be brought against an heir, even where he did not know that the deceased held the estate in the capacity of either heir or possessor. He states in the Seventh Book that the same rule applies even where the heir thought that the property claimed belonged to some estate to which he was entitled. 4Ad Dig. 5,3,13,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 16.How would it be if a person had purchased an estate? Should a prætorian action for the recovery of the estate be granted against him to prevent him being annoyed by separate suits? It is certain that the vendor is liable. But suppose no vendor appears, or he disposes of the property for a small amount of money, and was a bona fide possessor; can recourse be had to the purchaser? Gaius Cassius thinks that a prætorian action should be granted. 5The same rule must be considered to apply where an heir, having been directed to sell the estate for a small sum, disposed of it to Titius. Papinianus thinks that it should be held that an action could be granted against the beneficiary of the trust, as it is not expedient for suit to be brought against the heir where he has received an insignificant sum. 6The same rule will apply where the heir was asked to surrender the estate after retaining a certain amount. It is evident that if, after having received a certain amount, he was asked to surrender the remainder, that suit for recovery cannot be brought against him; (and this is the opinion held by Papinianus) since what the heir received in order to fulfill a condition is not possessed by him. Sabinus, however, holds differently in the case of a slave who is to be free conditionally, and this is the better opinion, because the money belongs to the estate. 7This rule is applicable where a party only retains the profits of the estate, and he also is liable to an action for recovery of the estate. 8Where anyone knowingly purchases an estate which belongs to another, he holds the same as possessor, some authorities think that an action for recovery may be brought against him; but I do not believe that this opinion is correct, for no one is a depredator who pays a price, still, being a purchaser of the entire estate, he is liable to a prætorian action. 9Ad Dig. 5,3,13,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 16.Moreover, where anyone purchases an estate from the Treasury with the understanding that it has no owner; it is perfectly right that a prætorian action should be granted against him. 10It is stated by Marcellus in the Fourth Book of the Digest, that where a woman gives an estate by way of dowry, the husband is in possession of the same by right of dowry, but is liable to a prætorian action for its recovery. Marcellus, however, says that the woman herself is liable to a direct action, especially if a divorce has already taken place. 11It is also established that the heir to property which the deceased possessed as purchaser is liable to an action for the recovery of the same, for the reason that the heir holds possession “as heir”, although he is also liable to a suit for property which the deceased possessed, either in the capacity of heir or in that of possessor. 12Where anyone is in possession of an estate in behalf of a person who is absent, and it is uncertain whether the latter will ratify his acts or not; I think that suit for recovery can be brought in behalf of the party who is absent, but certainly not on his own account; because a man is not deemed to be in possession “as heir”, or merely “as possessor”, who holds property as the representative of another; unless someone should say that, as the principal did not ratify his acts, the agent is, to a certain extent, a depredator, for then he can be held liable on his own account. 13The action for the recovery of an estate can be brought not only against the person who possesses property which belongs to the estate, but even if he possesses nothing; and it should be considered if where he possesses nothing, and offers to defend the suit himself, whether he does not render himself liable. Celsus states in the Fourth Book of the Digest, that he is liable on the ground of fraud; for anyone who, himself, offers to defend a suit of this kind acts fraudulently. This opinion is generally approved by Marcellus in his comments on Julianus, for he says that every one who volunteers to defend a suit for the recovery of an estate is liable just as if he were in possession of the same. 14Moreover, when anyone is guilty of fraud to avoid being in possession, he will be liable to an action for the recovery of an estate. Where, however, I lose possession through fraud, and another obtains it and is ready to defend an action, Marcellus in the Fourth Book of the Digest discusses the point as to whether the right to damages is not extinguished as against a party who has ceased to be in possession; and he also says that it is extinguished unless the plaintiff has an interest in a contrary decision. He states positively that if the party is prepared to surrender the property, the right of action for damages is undoubtedly extinguished; but if he who relinquishes possession fraudulently is sued before the other, the possessor will not be released from liability. 15The action for the recovery of an estate can also be brought against a debtor to the same, on the principle that he is the possessor of a right; and it is established that suit can be brought for the recovery of an estate against the possessor of a right.

14Paulus, On the Edict, Book XX. It makes no difference whether the person is a debtor on account of some offence which he has committed, or by reason of a contract. The term “debtor to an estate” is understood to include a person who incurred some liability to a slave belonging to the estate, or one who did some damage to it before it was entered upon,

15Gaius, On the Provincial Edict, Book VI. Or someone who stole something from the estate.

16Ulpianus, On the Edict, Book XV. Where, however, the person against whom suit is brought for recovery of the estate is a debtor for a sum to be paid within a certain time, and under some condition, judgment should not be rendered against him. It is clear that the time when judgment is rendered should be considered by the court in determining whether the day for payment has arrived, according to the opinion of Octavenus as stated by Pomponius; which would also be the case in a conditional stipulation. If, however, the day of payment has not arrived, the defendant should by order of the judge make provision for the payment of the debt at the proper time, or when the condition is fulfilled. 1He also who is in possession of the price of property belonging to the estate, or who has collected a claim from a debtor to the estate, is liable in an action for the recovery of the estate. 2Wherefore, Julianus states in the Sixth Book of the Digest, an action for the recovery of an estate can be brought against a party who also claims it, and who has collected damages in a suit. 3An action for the recovery of an estate can be brought not only against a debtor of the deceased, but also against a debtor to the estate. It is held by both Celsus and Julianus that it can be brought by anyone who transacted the business of the estate; but where the party transacted business for the heir, this cannot be done, for no action for the recovery of an estate can be brought by anyone indebted to the heir. 4Julianus states that if a person who is in possession as heir is forcibly ejected, suit can be brought by him as the possessor of a right against the estate; for the reason that he is entitled to the interdict Unde vi, which he must assign if he is defeated; but the party who ejected him is also liable to a suit for recovery, because he is in possession “as possessor” of the property belonging to the estate. 5Julianus further says that where anyone sells property belonging to an estate, whether he is in possession, or whether he has received the purchase money or not, or has a right to bring suit for the same, he is, in this case also, required to assign his rights of action. 6He also says that a patron cannot bring suit for an estate against a party to whom his freedman fraudulently made a transfer, because he is liable to the Calvisian Action, at the instance of the said patron, as he is the debtor of the latter, and not the debtor of the estate. Therefore, no suit for the recovery of an estate will lie against one to whom a donation was made mortis causa. 7Ad Dig. 5,3,16,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 16.Julianus always says that where anyone transfers an estate, or delivers certain articles belonging to the same, in compliance with a trust, suit can be brought against him for recovery; because he has a right to bring a personal action to recover property transferred for that reason, and he is, as it were, the possessor of a right. 8He also states that where he has paid out the purchase-money of articles which he sold in pursuance of the trust, suit for recovery of the estate can be brought against him, because he himself can recover the money. In such instances, however, the heir must only assign his rights of action; since the property is in existence, and the claimant can also recover it by an action in rem.

17Gaius, On the Provincial Edict, Book VI. If the possessor of an estate should pay legacies with his own money, for the reason that he thought that he was the heir under the will, and anyone deprives him of the estate on the ground of intestacy—although it may be held that the possessor is damaged, because he did not provide for himself by making a stipulation that if the estate was acquired by some other person, the legacies should be returned to him—still, as it might happen that he paid the legacies at a time when there was no controversy as to the ownership of the estate, and for that reason he failed to obtain security, it is established in a case of this kind that if he loses the estate, an action for the recovery of what he paid should be granted him. But where no security was given, and such an action is granted, there is danger that he cannot recover anything on account of the poverty of the party to whom the legacy was paid; and, therefore, according to a decree of the Senate, he is entitled to relief, and can pay himself by retaining property belonging to the estate; but he must assign his rights of action to the plaintiff so that he may institute proceedings at his own risk.

18Ulpianus, On the Edict, Book XV. It should also be considered, when the possessor of an estate makes a sale through a broker, and the latter loses the money, whether he is liable to a suit for recovery, since he has nothing and can obtain nothing? Labeo thinks that he is liable, becauses he injudiciously trusted the broker at his own risk. Octavenus, however, says that he must assign nothing but his rights of action, for he is liable to a suit to recover these rights. It seems to me that the opinion of Labeo is correct in the case of a party who holds possession in bad faith, but that that of Octavenus is the one to be adopted where the possessor is a bona fide one. 1Where an action is brought against a party for the recovery of an estate, who is not at the time the possessor of either the property, or of any right, but who subsequently obtained possession of either, can he be held liable to such an action? Celsus, in the Fourth Book of the Digest, states very properly that a decision should be rendered against him, even though in the beginning he had nothing in his possession. 2Now let us consider what things are included in the suit for the recovery of an estate. It is held that a suit of this kind includes all the assets belonging to an estate, whether they consist of rights or tangible property.

19Paulus, On the Edict, Book XX. And, indeed, it embraces not only tangible property belonging to the estate, but also such as does not form part of it, but which is nevertheless at the risk of the heir; as for instance, articles given in pledge to the deceased, or loaned to him, or deposited with him. In fact, as to articles left in pledge, there is a special action for their recovery, even though they are included in the suit for the estate, like those articles which are the object of the Publician Action. But although an action cannot readily be brought with reference to articles which have been loaned or deposited, it is still just that they should be restored, because parties are subject to risk on their account. 1But where the term requisite to acquire ownership by usucaption, as purchaser, has been completed by the heir, that is to say, the plaintiff, the property will not be included in the suit for recovery of the estate, nor will any exception be granted the possessor. 2Those articles also are included in the suit for recovery of an estate which the possessor has a right to retain, though not the right of action to recover them; for example, where the deceased had sworn that the property did not belong to the plaintiff, and then died, this must also be restored. Nay more, where the possessor of property lost it through his own fault, he will be liable on this account. The same rule will apply to the case of a depredator, although he is not liable on the ground of negligence, because he ought not to retain the property. 3I have stated that servitudes are not included in the restitution of property belonging to an estate, since there is nothing to be restored under that head, as in the case of material things and their profits; but if the owner of the land does not permit the other party to pass through without hindrance, a suitable action can be brought against him.

20Ulpianus, On the Edict, Book XV. Those things also which were acquired on account of the estate are also embraced in a suit for its recovery; as for instance, slaves, cattle, and anything else which was necessarily obtained for the benefit of the estate. Where, indeed, these were purchased with money belonging to the estate, they are undoubtedly included therein. But if the money was not a part of the estate, it should be considered whether this is the case; and I think that they ought to be included if they were of great advantage to the estate, and the heir must by all means return the price paid for them. 1Everything purchased with money belonging to an estate is not, however, to be included in an action for its recovery. For Julianus says in the Sixth Book of the Digest, that if the possessor purchased a slave with money belonging to the estate, and suit is brought against him for its recovery, the slave will only be included in the assets of the estate if it was to the interest of the same that he should be purchased; but if the possessor bought him for his own use, then the price paid for him must be included. 2Ad Dig. 5,3,20,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 612, Note 18.In like manner, if the possessor sold land belonging to the estate without any good reason, not only the land, but its crops as well, shall be included in a suit to recover the estate; but if he did this for the purpose of paying a debt due from the estate, nothing else shall be included but the price which was paid. 3Again, not only the property which was in existence at the time of death, but also that which was afterwards added to the estate, are to be included in the action for its recovery; for an estate admits of both the increase and diminution of its assets. I am of the opinion that whatever is added to an estate after it has been entered upon,—if, in fact, it is derived from the estate itself—should form part of the same; but if it is derived from some other source it does not, because such property belonged to the possessor in person. All crops also constitute an increase of the estate, whether they have been obtained before, or after entry upon the same, and the offspring of female slaves unquestionably increases the amount of an estate. 4As we have previously mentioned that all rights of action belonging to an estate can be included in a suit brought for its recovery, the question arises whether they bring their proper character with them or not; for example, where the amount of damages in an action is increased by the denial of the defendant, does such an action include the said increase, or is it only brought for simple damages, as under the Lex Aquilia? Julianus says in the Sixth Book of the Digest, that liability exists only for simple damages. 5The same authority very properly holds that where the possessor has had judgment rendered against him in a noxal action in favor of the deceased, he cannot be released by a surrender of whatever caused the damage; because a defendant only has the right of surrendering the property for that purpose, until suit has been brought against him to enforce the judgment; but after it has been brought, he cannot liberate himself by a surrender of this kind; and, indeed, such a proceeding has been brought against him in this instance by filing a petition for the recovery of the estate. 6In addition to these points, we find many others discussed with reference to suits for the recovery of estates; to the sale of property belonging to deceased persons; to fraud which has been committed; and to profits. As, however, a rule was established by a decree of the Senate, the best course will be to give the contents of the decree itself in its own words and then interpret it: “On the day before the Ides of March Quintus Julius Balbus and Publius Juventius Celsus, Titius Aufidius and Oenus Severianus, being Consuls, made statements with reference to those questions which the Emperor Cæsar, the son of Trajanus Parthicus, grandson of the Divine Nerva, Hadrianus Augustus, the greatest of sovereigns, proposed and included in a written communication on the fifth day of the Nones of March what he wished to be done, and thereupon they passed the following resolutions: 6aWhereas, before suit was brought by the Treasury for a certain part of the property of Rusticus forfeited to the State, those who thinking that they were heirs of said estate sold the same; We decree that interest ought not to be charged on the price of the property sold, and the same rule must be observed in similar cases. 6bMoreover, We decree that where judgment is rendered against parties who have been sued for the recovery of an estate, the price of any property belonging to said estate must be refunded by them, even if such property was destroyed or depreciated in value before the action for recovery was brought. 6cMoreover, if any parties have taken possession of the property of an estate when they knew that it did not belong to them, even though this was done before issue was joined, in order to avoid being in possession of the same, judgment shall be rendered against them just as if they had been in possession of said property; but where they had good reason to believe that they were entitled to the said property, they shall only be liable to the extent to which they profited by their act. 6d“It was the opinion of the Senate that the action for recovery of the estate must be considered to have been brought by the Treasury as soon as the party knew that he had been sued; that is to say, as soon as he was notified or summoned either by a letter or by a citation.” We must now give the proper interpretation of the separate terms of the decree of the Senate. 7The Senate says, “Before suit was brought by the Treasury for a certain part of the property forfeited to the State”. What occurred was that the Treasury brought suit for a certain forfeited portion of an estate, but if the whole of it had been claimed, the Decree of the Senate would likewise be applicable; and where an action was brought by the Treasury for unclaimed property or goods to which it was entitled for any other good reason, the same rule would apply. 8The same decree of the Senate will apply where an action is brought by a municipality. 9Where a private party brings an action, no one doubts that the decree of the Senate will also apply, although it is made on account of a public matter. 10Not only do we make use of this decree of the Senate in questions relating to estates, but also in those having reference to the peculium castrense, or any other aggregate of property. 11With reference to the clause, “The action for the recovery of the estate must be considered to have been brought as soon as,” etc., this signifies as soon as the party knows that the estate is demanded of him, because as soon as he learns of this he immediately becomes a possessor in bad faith, that is “As soon as he was notified”. What would be the case, however, if he was aware of the fact, and still nobody notified him? Will he become liable to refund the interest on money received for the sale of property? I think that he will, for he then becomes a possessor in bad faith. But let us suppose that he has been notified, but was not aware of it, because the notice was served, not on himself but on his agent? The Senate requires that he himself should be notified; and therefore he will not be affected unless the party to whom notice was given informs him; but where the agent was able to do so, and did not, he will not be liable. The Senate did not state by whom the party must be notified, and therefore whoever does it will render him whom he notified liable. 12These things have reference to bona fide possessors, for the Senate mentioned those, “Who, thinking that they were heirs”; but where a party sells an estate which he knows does not belong to him, then, beyond question, not only the purchase-money of the property but also the property itself and the profits of the same, are included in the suit for recovery. However, the Emperor Severus in an Epistle to Celer seems to have applied this rule to possessors in bad faith also; although the Senate only mentioned those who thought themselves to be heirs; unless we refer the words to such articles as it was expedient to sell because they were a burden, rather than a benefit to the estate, so that it might be in the discretion of the plaintiff to select what account he could render against the possessor in bad faith; whether he would demand of him the property and the profits thereof, or the purchase-money and interest, after proceedings had been instituted. 13Although the Senate mentions those who think that they are heirs, still, if they consider themselves to be the possessors of the property or any other lawful possessors, or the estate has been delivered to them, they will occupy the same position. 14Papinianus states in the Third Book of Questions, that if the possessor of an estate does not handle money found among the assets of the same, a suit for interest can, under no circumstances, be brought against him. 15The decree of the Senate says, “On the purchase money received for the property sold”. We must understand by “purchase-money received”, not only that which was already obtained, but also that which might have been obtained, but was not. 16What must be done if the possessor sold property after a suit for recovery of the estate had been brought? Then the property itself and the profits of the same will be included. If, however, the property should be of such a nature as to be unproductive, or liable to be destroyed by lapse of time, and it was sold at its true value, perhaps the plaintiff may choose to have the purchase-money and the interest of the same. 17The Senate says it is decreed that, “Where suit is brought against any persons for the recovery of an estate, and judgment is rendered against them, the purchase-money which they received for the sale of property belonging to said estate must be surrendered by them; even though such property may have been destroyed, or diminished in value before the suit was brought”. Where a bona fide possessor sells the property of an estate, whether he received the purchase-money or not, he must return the price, because he has a right of action; but where he has a right of action, it will be sufficient if he assigns that right. 18But where he sold property, and paid over what he received for it to the true owner on a judgment for the same, it is not held to have come into his hands; even if it might be said that, in the beginning, the purchase-money was not included in the suit, because what was sold did not form part of the estate. But although the Senate made mention not of property which belonged to the estate but of articles included in it, he will not be compelled to make restitution, since nothing remains in his hands. Julianus states in the Sixth Book of the Digest, that a party will not be required to make restitution of what he collected which he actually does not owe; nor will he be entitled to credit for money which he paid which was not due. 19But where property has been returned, then it is certainly a part of the estate, and the price of the same which was refunded will not be included in a suit for recovery of the estate. 20Where the possessor of an estate is liable to the purchaser by reason of the sale, it must be held that he is protected by the security. 21Ad Dig. 5,3,20,21Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 612, Note 19.The possessor must pay over the purchase-money, whether the property is destroyed, or diminished in value. But, is he bound to refund it without distinction, if he is the possessor in good faith, or even in bad faith? If the property is still in existence and in the possession of the purchaser, and is not destroyed or deteriorated; then, undoubtedly a possessor in bad faith must deliver the actual property, or, if he is absolutely unable to recover it from the purchaser, he must pay as much as the property is sworn to be worth in court. Where, however, the property is lost or deteriorated, the real value must be paid, because if the plaintiff had secured the property, he might have sold it, and could not have lost its real value.

21Gaius, On the Provincial Edict, Book VI. Property is understood to be destroyed, when it has ceased to exist; and lost, when the title to it has been acquired by usucaption, and, on this account, it has been removed from the assets of the estate.

22Paulus, On the Edict, Book XX. Where a bona fide possessor has obtained both the property and the purchase-money for the same; for example, because he purchased the identical thing, should he be heard if he prefers to surrender the property and not the purchase-money? We hold that in the case of a depredator, the plaintiff should have his choice; but, in this instance, the possessor has a better right to be heard, if he wishes to deliver the property itself, even though it may be deteriorated; but if the plaintiff wishes to have the purchase-money, he should not be heard, because a desire of this kind is an impudent one; or shall we consider that, since the purchaser has been enriched by property included in the estate, he should surrender it with the excess of the purchase-money over and above its present value? In an Address of the Divine Hadrian the following appears: “Conscript Fathers examine whether it is more equitable that the possessor should not obtain a profit, but should surrender the purchase money which he received for the sale of property belonging to another, as it may be decided that the purchase-money takes the place of the property of the estate which was sold, and, to a certain extent, becomes a portion of the assets of said estate”. Therefore the possessor is required to surrender to the plaintiff not only the property itself but also the profit which he obtained by the sale of the same.

23Ulpianus, On the Edict, Book XV. It should be considered whether a bona fide possessor is required to surrender all the purchase-money, or whether he must do so only in cases where he was enriched by it; suppose, for example, that after having received it he either lost it, expended it, or gave it away. The clause, “Came into his hands”, is one of doubtful significance, whether it only applies to what there was in the beginning, or to what remains; and I think that the next clause in the decree of the Senate is also ambiguous, and that no claim can be made except where the party is pecuniarily benefited. 1Hence, if what comes into his hands is not only the purchase-money, but also a penalty incurred on account of delayed payment; it may be held that this also was included, because the party was enriched to that entire amount, although the Senate only mentioned the purchase-money.

24Paulus, On the Edict, Book XX. Where the possessor is forcibly ejected, he is not obliged to give up a penalty incurred, because the plaintiff has no right to the same. Neither is he required to surrender a penalty which his adversary promised him if he should not be present at the trial.

25Ulpianus, On the Edict, Book XV. Moreover, if he sold part of the estate under a conditional agreement it must be stated that the same rule applies, and he must surrender the profit which he obtained under such conditions. 1Again, if he sold property and bought other property with the purchase-money, the latter will be included in a suit for the recovery of the estate; but not the property which he added to his own possessions. But, where the property purchased was of less value than what is paid for it, he will be considered to have become enriched to the amount only of the value of said property, just as, if he had used it up, he would not be considered to have been enriched to its full value. 2Ad Dig. 5,3,25,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 193, Note 13.When the Senate says: “Where parties have taken possession of property which they know does not belong to them, even though they did this before issue was joined, in order to avoid being in possession of the same; judgment shall be rendered against them, just as if they were in possession”; this is to be understood to mean that fraud which has been committed, as well as negligence, may be alleged in the action for the recovery of the estate; and therefore suit can be brought against a party who did not collect a debt of the estate from another, or even from himself, if he was released by lapse of time, that is, if he was able to collect the debt. 3As to what the Senate says, namely, “Where they have taken possession of property”, reference is here made to plunderers, that is to say, those who know that the estate does not belong to them and appropriate its assets; at all events, where they have no good reason for taking possession of the same. 4So far as profits are concerned, however, the Decree states that they will have to surrender not only what they obtained, but also what they ought to have obtained. 5In this instance the Senate refers to a party who has appropriated property belonging to an estate for the purpose of plundering it. Where, however, in the beginning, he had good cause for taking possession, and afterwards having become aware that none of the estate belonged to him, acted in a predatory manner, the Senate does not seem to refer to him; still, I am of the opinion that the intention of the Decree also has reference to him; for it makes little difference whether a man conducted himself fraudulently in connection with an estate in the beginning, or began to do so subsequently. 6With regard to the clause, “Who knows that the property does not belong to them”; shall this be considered to apply to one who is aware of the facts, or to one who made a mistake with reference to the law? For he may have thought that a will was properly executed, when it was void; or that he was entitled to the estate rather than some other agnate who had preceded him. I do not think that anyone should be classed as a plunderer who lacks fraudulent intent, even though he may be mistaken with reference to the law. 7The Decree says, “Even though they should do this before issue was joined”; and this has been added for the reason that, after issue has been joined, all possessors are held to be liable for bad faith; and, indeed, this is the case after proceedings have been instituted. Although mention is made of joinder of issue in the Decree of the Senate, still, as soon as proceedings have been begun, all possessors are on the same footing, and are liable as plunderers, and we make use of this rule at the present time. Hence, as soon as the party is called to account, he becomes aware that the property of which he is in possession does not belong to him; and, indeed, where a man is a plunderer, he will be held liable on the ground of fraud before issue is joined, for this would be a species of fraud which has already been committed. 8“Therefore”, it is further stated in the Decree, “judgment should be rendered against them just as if they were in possession”. This is reasonable, for a party who acts fraudulently in order to avoid being in possession should have judgment rendered against him, just as if he were the actual possessor; which is to be understood to mean whether he fraudulently relinquishes possession, or with fraudulent intent refuses to take possession. This clause will apply whether the property is in possession of another or has absolutely ceased to exist; wherefore, if some one else is the possessor, suit for the recovery of the estate can be brought against either party, and where possession has passed through several persons all of them will be liable. 9Shall he alone who is in possession be liable for the profits, or will he also be liable who acted fraudulently to avoid being in possession? It must be said, after the Decree of the Senate, that both are liable. 10These words of the Decree permit an oath to be administered, even against the party who is not in possession; as he who acted fraudulently to avoid being in possession may swear to the amount in court, just as the defendant can do who is in possession. 11The Senate attempted to favor bona fide possessors, in order to prevent them from being subjected to loss of the full amount, and only to be held liable to the extent to which they became enriched; therefore, whatever expense they caused the estate, either by wasting or losing any of the property, if they thought that they were squandering what belonged to themselves, they will not be compelled to make restitution; nor where they have given anything away, will they be considered to have become more wealthy, although they may have placed some one under a natural obligation to remunerate them. It is clear that if they have accepted any recompense in return, it must be held that they are enriched to the amount of what they received; as this would be a certain kind of exchange. 12Where anyone makes use of his property in a more lavish manner on account of his being entitled to an estate, Marcellus thinks, in the Fifth Book of the Digest, that he will not be entitled to any deduction from the estate if he has not used any of it. 13In like manner, if he borrowed money as though he were rich and deceived himself, the same principle will apply. 14Where, however, he pledged some of the assets of the estate, should it be considered whether he has used any of said assets? This is a difficult question to answer, as he himself is liable. 15To such an extent is it true that a person is not held liable who is not enriched, that if anyone, being under the impression that he is the sole heir, wastes half of an estate without fraudulent intent, Marcellus, in treating this point in the Fourth Book of the Digest, asks whether he is liable; since what he appropriated was derived from property that did not belong to him, but to his co-heirs; for if a man who is not an heir wastes everything under his control, he will undoubtedly not be liable, since he was not enriched. In the question proposed, however, there are three opinions involved; one the first mentioned; next, the second, namely, that it might be said that he is obliged to surrender all the assets that remain, since he had squandered his own share; and third, that what was wasted should be charged to both; and he says that something should certainly be given up, but he doubts whether restitution for all or only a part should be made. It is my opinion, however, that the entire balance should not be given up, but only half of the same. 16Where anyone has expended part of an estate must it lose all, or will a proportion of the loss be taken out of his patrimony? As, for example, where he drank up the entire supply of wine belonging to the estate; must the estate bear all the expense, or will some of it be charged to his patrimony? This would be on the supposition that he Was deemed to be more wealthy to the amount that he was in the habit of expending for wine before he received the inheritance; so that, if he was more lavish in his expenditure on account of the inheritance, he would not be considered to become more wealthy to the amount of the excess, but he would be held to have become enriched so far as his regular outlay was concerned; since, if that were true, he would not have incurred such great expense; nevertheless, he would have spent something for his daily subsistence. The Divine Marcus, in the case of a certain Pythodorus, who had been asked to give up as much of the estate as remained under his control, decreed that what had been alienated without the intention of diminishing the trust, and the price of which had not increased the private property of Pythodorus, should be returned, and should be charged to the private property of Pythodorus and the estate, and not the estate alone. Therefore, it must be considered whether, in accordance with the Rescript of the Divine Marcus, the ordinary expenses should be taken out of the estate, or out of the private property of the aforesaid party; and the better opinion is that the expenses which he would have incurred, if he had not been the heir, must be paid out of his own estate. 17Ad Dig. 5,3,25,17Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 16; Bd. III, § 612, Note 15; Bd. III, § 616, Note 1.Moreover, if the bona fide possessor sold property of the estate and did not become more wealthy by the purchase-money, has the plaintiff a right to recover certain articles from the purchaser, if he has not yet acquired the title to them through usucaption? And, if he brings suit for their recovery, may he not be barred by this exception; (“As the estate should not be prejudiced by any question arising between the plaintiff and the party who made the sale, on the ground that the price of said property is not held to be included in the action brought for the recovery of an estate”), and even if the purchaser loses his case, has he a right for reimbursement from the party who made the sale? I am of the opinion that the property can be recovered, unless the purchaser can have recourse to the bona fide possessor. But what if the party who made the sale is prepared to set up a defence, in order to permit himself to be sued, just as if he were in possession? In this instance an exception would apply on the part of the purchaser. It is certain that if the property was sold for a low price and the plaintiff recovers it, no matter what the amount was, then much more may it be said that he will be barred by an exception. For if the possessor collects anything from the debtors of the estate, and pays the money to the plaintiff, Julianus says in the Fourth Book of the Digest, that the said debtors are released from liability, whether the party who collected the debts from them was a bona fide possessor or a plunderer, and that they are discharged by operation of law. 18A suit for the recovery of an estate, although it is in an action in rem, still includes some personal obligations; as, for example, the payment of funds received from debtors, as well as the purchase money of property which has been sold. 19This Decree of the Senate though it was passed to facilitate proceedings for the recovery of an estate, it is well settled also applies to a suit in partition; otherwise, the absurd principle would be established that an action might be brought for the recovery of property, but not for the purpose of its division. 20The young of flocks and cattle form part of the increase of an estate.

26Paulus, On the Edict, Book XX. And if lambs are born, and afterwards others are born of these, the latter must also be given up as an increase of the estate.

27Ulpianus, On the Edict, Book XV. The issue of female slaves and the offspring of their female children are not considered to be profits, because it is not customary for female slaves to be acquired for breeding purposes; their offspring are, nevertheless, an increase of the estate; and since all these form part of the estate, there is no doubt that the possessor should surrender them, whether he is the actual possessor, or, after suit was brought, he acted fraudulently to avoid being in possession. 1Moreover, rents which have been collected from persons who leased buildings, are included in the action; even though they may have been collected from a brothel, for brothels are kept on the premises of many reputable persons.

28Paulus, On the Edict, Book XX. For, according to the Decree of the Senate, it must be held that every species of profit should be included, whether it is obtained from a bona fide possessor or from a depredator.

29Ulpianus, On the Edict, Book XV. It is evident that any payments received from testaments are to be considered as profits. Compensation for the labor of slaves is in the same class as rents, as well as payment made for transportation by ships and beasts of burden.

30Paulus, On the Edict, Book XX. Julianus states that a plaintiff ought to elect whether he will demand merely the principal or the interest as well, taking an assignment of the rights of action at his own risk. But, according to this, we shall not observe what the Senate intended should occur, which was that a bona fide possessor should be liable to the amount by which he was enriched; and what would be the case if the plaintiff should elect to take money which the defendant had been unable to retain? It must be said therefore with reference to a bona fide possessor, that he is only obliged to pay either the principal and interest on the same, if he received any, or assign his right of action for whatever is still due to him under it; but of course, at the risk of the plaintiff.

31Ulpianus, On the Edict, Book XV. If the possessor has paid any creditors, he will have a right to include these payments, even though he did not actually release the party who brought the action for recovery; for where anyone makes a payment in his own name, and not in behalf of the debtor, he does not release the debtor. Hence, Julianus says in the Sixth Book of the Digest, that the possessor can, under such circumstances, only be credited where he gives security that he will defend the plaintiff against the creditors. But whether a bona fide possessor is obliged to give security that the plaintiff shall be defended, should be considered, because he does not seem to have been enriched by the payments which he made; unless he may have had a right of action to recover them, and in this respect he appears to be enriched, because he can bring suit to recover the money; for example, where he thinks that he is the heir, and paid what was due on his own account. Julianus appears to me to have been thinking only of a plunderer who ought to give security, and not of a bona fide possessor; the latter, however, must assign his right of action. Where the plaintiff is sued by the creditors, he should make use of an exception. 1Where anything was owing to the plunderer himself, he should not deduct it; especially if it was a debt due through a natural obligation. But what if the plaintiff was benefited by the debt being paid, because it was incurred with a penalty, or for some other reason? In this instance it may be stated that he has paid himself, or should have done so. 2A lawful possessor undoubtedly ought to deduct what is due to him. 3Ad Dig. 5,3,31,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 193, Note 13.Just as he can deduct expenses which he has incurred, so, if he ought to have incurred expenses and did not do so, he must answer for his negligence, unless he is a bona fide possessor; and then as he neglected his own business, as it were, no suit can be brought against him before that for the recovery of the estate; but after that time he himself is a plunderer. 4It is evident that a plunderer cannot be called to account for permitting debtors to be released from liability, or to become poor, instead of suing them immediately, since he had no right of action. 5Let us see whether a possessor is required to refund what has been paid him. Whether he was a bona fide possessor or not, it is established that he must make restitution, and if he does do so, (as Cassius states, and Julianus also in the Sixth Book) the debtors are released by operation of law.

32Paulus, On the Edict, Book XX. Property which is acquired through a slave must be delivered to the heir. This rule applies also to the estate of a freeman, and where proceedings are instituted on the ground of an inofficious testament, when, for the time being, the slave is included in the property of the heir:

33Ulpianus, On the Edict, Book XV. Unless the slave entered into a stipulation based on the property of said heir. 1Ad Dig. 5,3,33,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 612, Note 18.Julianus says that where a possessor sold a slave, if the latter was not required by the estate, he can be asked in the action for recovery to pay over the purchase-money, as he would have been charged with it if he had not sold him; but where the slave was required by the estate, he himself must be delivered, if he is living, but if he is dead, perhaps not even the price paid for him should be surrendered; but he says that the judge who has jurisdiction of the case will not permit the possessor to appropriate the purchase-money, and this is the better opinion.

34Paulus, On the Edict, Book XX. I am of the opinion that where the estate of the son of a family, who is a soldier, is left to anyone by will, an action to recover the same can be brought. 1Where a slave, or the son of a family has possession of property belonging to an estate, suit can be brought for the estate by either the father or the master, if the party has the power to give up the property. It is evident, if the master has obtained the purchase-money of property belonging to the estate, as a portion of the slave’s peculium, that then, as Julianus holds, the suit for recovery can be brought against the master as the possessor of a right.

35Gaius, On the Provincial Edict, Book VI. Julianus likewise says that “A suit for the recovery of an estate can be brought against the master, as the possessor of a right, even where the slave has not yet received the purchase-money of the property, for the reason that he has a right of action by which he can recover the money; which right of action may be acquired by any one even if he is not aware of the fact”.

36Paulus, On the Edict, Book XX. Where suit for the recovery of an estate is brought against the owner of a slave or a father, who has the purchase money, should proceedings be instituted within a year after the death of the son or the slave, or after the slave has been manumitted, or the son emancipated? Julianus states that the better opinion is (and in this Proculus also concurs), that a perpetual action should be granted and that it is not necessary for the party’s own debt to be deducted, because the proceedings do not relate to peculium, but suit is brought for the recovery of an estate. This is correct where the slave or the son has the purchase-money; but if the suit is brought against the owner of the slave, because the debtor himself is a slave, action should be taken as if the peculium was involved in the case. Mauricianus says that the same rule applies, even if the slave or the son squanders the money obtained as the price, but it can be made good in some other way out of his peculium. 1There is, however, no doubt that a suit for the recovery of an estate can be brought against the son of a family, because he has the power to deliver it; just as he has to produce it in court. With much more reason can we say that an action for recovery can be brought against the son of a family who, when he was the head of a household and in possession of the estate, permitted himself to be arrogated. 2If the possessor should kill a slave belonging to the estate, this also can be included in the action for its recovery; but Pomponius says that the plaintiff must elect whether he desires judgment to be rendered in his favor against the possessor; provided he gives security that he will not proceed under the Lex Aquilia, or whether he prefers that his right of action under the Lex Aquilia should remain unimpaired, and not have an appraisement of the property made by the court. This right of election applies where the slave was killed before the estate was entered upon; for, if this were done subsequently, then the right of action becomes his own, and cannot be included in the suit to recover the estate. 3Where a plunderer fraudulently relinquishes possession, and the property is destroyed in the same way that it would have been destroyed if he had remained in possession under the same circumstances; then, considering the words of the Decree of the Senate, the position of the plunderer is preferable to that of the bona fide possessor; because the former, if he fraudulently relinquished possession, can have judgment rendered against him just as if he was still in possession, and it is not added in the decree: “If the property should be destroyed”. There is no question, however, that the position of the plunderer ought not to be better than that of the bona fide possessor. Therefore, if the property brought more than it was worth, the plaintiff should have the right to choose whether or not he will take the purchase-money; otherwise, the plunderer will profit to a certain extent. 4Some doubt is expressed as to the time when a bona fide possessor became enriched; but the better opinion is that the time when the case was decided should be considered in this instance. 5With reference to profits, it is understood that the expenses incurred in the production, collection, and preservation of the profits themselves should be deducted, and this is not only positively demanded on the ground of natural justice in the case of bona fide possessors, but also in that of plunderers, as was also held by Sabinus.

37Ulpianus, On the Edict, Book XV. Where a person has incurred expense and realized no profit, it is perfectly just that the expense should be taken into account in the case of bona fide possessors.

38Paulus, On the Edict, Book XX. In the case of other necessary and useful expenses, it is evident that these can be separated, so that bona fide possessors may receive credit for the same, but the plunderer can only blame himself if he knowingly expended money on the property of another. It is more indulgent, however, to hold that, in this instance, the account of his expenses should be allowed, for the plaintiff ought not to profit by the loss of another, and it is a part of the duty of the judge to attend to this; for no exception on the ground of fraud is needed. It is clear that the following difference may exist between the parties for the bona fide possessor may, under all circumstances, deduct his expenses, although the matter in which they were incurred no longer exists, just as a guardian or a curator may obtain allowance for his; but a plunderer cannot do so, except where the property is rendered better through the expenditure.

39Gaius, On the Provincial Edict, Book VI. Expenses are considered useful and necessary where they are incurred for the purpose of repairing buildings, or in nurseries of trees, or where damages are paid on account of slaves, since it is more advantageous to make payment than to surrender the slave; and it is clear that there must be many other causes for expenses of this kind. 1Let us examine, however, whether we cannot also have the benefit of an exception on the ground of fraud with reference to expenditures for pictures, statues, and other things purchased for pleasure, so long as we are possessors in good faith; for while it may very properly be said to a plunderer that he should not have incurred unnecessary expenses on the property of another, still, he should always have the power to remove whatever can be taken away without injury to the property itself.

40Paulus, On the Edict, Book XX. The statement also which is contained in the Address of the Divine Hadrian, namely: “That after issue has been joined, that must be delivered to the plaintiff which he would have had if the estate had been surrendered to him at the time when he brought the suit,” sometimes entails hardship. For what if, after issue had been joined, slaves, beasts of burden, or cattle, should die? In this instance, the party in compliance with the terms of the Address, must indemnify the plaintiff, because the latter could have sold them if the estate had been surrendered. It is held by Proculus that this would be proper where suit is brought to recover specific articles, but Cassius thinks otherwise. The opinion of Proculus is correct where a plunderer is concerned, and that of Cassius is correct in the case of bona fide possessors; for a possessor is not obliged to furnish security against death, or, through fear of such an accident, injudiciously to leave his own right undefended. 1The plunderer is not entitled to any profit which he makes, but it increases the estate; and therefore he must deliver whatever is gained by the profits themselves. In the case of a bona fide possessor, those profits only by means of which the possessor has become enriched will be included in the restitution as an increase of the estate. 2Where the possessor has obtained any rights of action, he must surrender them if he is evicted from the estate; for example, where an interdict Unde vi, or Quod precario, has been granted him. 3On the other hand, also, where the possessor has given security for the prevention of the threatened injury, he must be indemnified. 4Noxal actions are likewise included in the jurisdiction of the judge, so that if the possessor is prepared to surrender a slave on account of some damage which he has committed against the estate, or because he has been guilty of theft, he shall be released from liability, just as is done in the interdict Quod vi aut clam.

41Gaius, On the Provincial Edict, Book VI. If at the time when suit was brought against the possessor of the estate, he held but little property belonging to it and afterwards also obtained possession of more, he will be compelled to surrender this as well, if he loses his case, whether he obtained possession of the same before or after issue was joined. If the sureties whom he furnished are not sufficient for the amount involved, the Proconsul shall require him to furnish such as are suitable. On the other hand, if he acquires possession of less property than he had in the beginning, provided this happens without any fraud on his part, he should be discharged from liability so far as the property which he had ceased to hold is concerned. 1Julianus says that the profits obtained from property which the deceased held as pledges must also be included.

42Ulpianus, On the Edict, Book LXVII. Where a debtor to the estate refuses to pay, not because he says that he is an heir, but for the reason that he denies, or doubts that the estate belongs to the party who is bringing suit for the recovery of the same, he will not be liable under the action for recovery.

43Paulus, On Plautius, Book II. After I accepted a legacy from you, I brought an action to recover the estate. Atilicinus says that it has been held by certain authorities that I am not entitled to an action for recovery against you, unless I refund the legacy. Still, let us consider whether the plaintiff who brings an action to recover the estate is only obliged to return the legacy where security is given him that, if judgment is rendered against him in the case, the legacy will be repaid to him; since it is unjust that in this instance the possessor should retain a legacy which he had paid, and especially where his adversary did not bring the action for the purpose of annoyance, but on account of a mistake; and Lælius approves this opinion. The Emperor Antoninus, however, stated in a Rescript that where a man retained a legacy under a will, an action for the recovery of the estate should be refused him, where proper cause was shown; that is, where the intention to cause annoyance was manifest.

44Javolenus, On Plautius, Book I. Where a party who has received a legacy under a will brings an action for the recovery of the estate, and, for some reason or other, the legacy is not returned, it is the duty of the judge to cause the estate to be surrendered to the plaintiff, after deducting the amount which he received.

45Celsus, Digest, Book IV. Where anyone volunteers in the defence of a case without having the property in his possession, judgment shall be rendered against him; unless he can show by the clearest evidence that the plaintiff, from the beginning of the suit, was aware that he was not in possession of the property; because, under these circumstances, he was not deceived, and he who volunteered in defence of the action for recovery will be liable on the ground of fraud; and of course the damages must be estimated according to the interest the plaintiff had in not being deceived.

46Modestinus, Differences, Book VI. He should be understood to be, to all intents and purposes, a plunderer, who tacitly agrees to deliver the estate to someone who has no right to it.

47The Same, Opinions, Book VIII. A certain Lucius Titius having failed to have the testament of a relative set aside as forged; I ask whether he would not be able to file a complaint against the testament as being improperly executed, and not sealed? The answer was that he would not be prevented from instituting proceedings to show that the testament was not executed according to law, just because he did not succeed in having it set aside as forged.

48Javolenus, On Cassius, Book IV. In appraising the value of an estate, the purchase-money obtained for its sale must be included, as well as the addition of whatever else it was worth, if this was done on account of business; but where it is disposed of in compliance with the terms of a trust, nothing more will be included than what the party acquired in good faith.

49Papinianus, Questions, Book III. Where a bona fide possessor wishes to institute proceedings against debtors of an estate, or parties who hold property belonging to the same, he should, by all means, be heard, if there is danger of any rights of action being lost by delay. The plaintiff, however, can bring an action in rem for the recovery of the estate without fear of being met by an exception. But what, for example, if the possessor of the estate is negligent, or knows that he has no legal right?

50The Same, Questions, Book VI. An estate may exist under the law even though it does not include anything corporeal. 1Where a bona fide possessor erects a monument to a deceased person for the purpose of complying with a condition, it may be said because the wish of the deceased is observed in this matter, that if the expense of erecting a monument does not exceed a reasonable amount, or more than that ordered by the testator to be expended for this purpose, the party from whom the estate is recovered will have the right to retain the amount expended, by pleading an exception based on fraud; or he can recover the same by a suit on the ground of business transacted, or, as it were, for attending to matters connected with the estate. Although by the strict rule of law heirs are not liable to any action to force them to erect a monument, still, they may be compelled by Imperial or pontifical authority to comply with the last will of the deceased.

51The Same, Opinions, Book II. The heir of an insane person will be compelled to indemnify the substitute or a relative in the next degree for the profits of the intermediate time by means of which the said insane person seems to have become enriched through his curator; with the exception of such expenses as have been incurred either necessarily or beneficially with reference to the estate. Where, however, any necessary expense has been incurred in behalf of the said insane person, it must also be excepted; unless the said insane person had other sufficient property by means of which he could be supported. 1Interest on profits received after the action to recover an estate has been brought is not to be paid. A different rule is applicable where they were received before the action for recovery of the estate was brought, and for that reason increased the assets.

52Hermogenianus, Epitomes of Law, Book II. Where a possessor has obtained dishonorable profits from an estate, he will be compelled to surrender them also, lest a strict construction may give him the benefit of profits not honorably acquired.

53Paulus, On Sabinus, Book X. The alienation of property by the possessor is necessary, not only for the payment of debts by the estate, but where expenses have been incurred by the possessor on account of the estate, or where property is liable to be destroyed or deteriorated by delay.

54Julianus, Digest, Book VI. Where a party purchases from the Treasury certain shares in an estate, or the whole of it, it is not unjust that a right of action should be granted him by which he may bring suit for the entire property; just as a right of action for recovery is granted to anyone to whom an estate has been delivered under the Trebellian Decree of the Senate. 1There is no doubt that the heir of a debtor can, by an action for the recovery of the estate, obtain possession of articles pledged by the deceased. 2Where buildings and lands have become deteriorated through the negligence of the possessor; for instance, where vineyards, orchards, or gardens have been cultivated in a manner which was not like that employed by the deceased owner; the possessor must permit an assessment of damages in court to the extent to which the property has been diminished in value.

55The Same, Digest, Book LX. When an estate has been recovered by suit, the bona fide possessor will be compelled to surrender whatever he has collected under the Lex Aquilia, not only to the extent of the simple value, but to double the amount; for he should not make a profit out of what he collected on account of the estate.

56Africanus, Questions, Book IV. When an action is brought for the recovery of an estate, all the profits acquired by the possessor must be surrendered, even where the plaintiff himself would not have obtained them.

57Neratius, Parchments, Book VII. Where the same party defends two actions against the same estate, and judgment is rendered in favor of one of them, the question sometimes arises whether the estate should then be surrendered to him who gained the suit, just as would have been done if no defence had been made against the other; so that, in fact, if judgment should afterwards be rendered in favor of the other party, the defendant would be released from liability; since he was neither in possession, nor had acted fraudulently to avoid being in possession, as he had surrendered the property when he lost the case; or because it was possible that the other plaintiff might be able to obtain a decision in his favor, the defendant should not be obliged to surrender the estate unless security is given him, for the reason that he was compelled to defend the action for recovery of the estate against the other party. The better opinion is that it should be the judge’s duty to come to the relief of the defeated party by security or a bond, since in that way the property remains for the benefit of him who is slow in asserting his rights against the successful plaintiff who preceded him.

58Scævola, Digest, Book III. A son who was emancipated by his father in compliance with a condition of his mother’s will, entered upon the estate which his father had possession of before he emancipated his son, and of which he had also obtained the profits, and expended some of them in honor of his son, who was a Senator. The question arose, as the father was prepared to surrender the estate, after having reserved the sum which he had expended for his son, whether the latter, if he still persisted in prosecuting his action for the recovery of the estate, could be barred by an exception on the ground of fraud? I answered that even if the father did not avail himself of the exception, the duty required of the judge could sufficiently dispose of the matter.