De hereditatis petitione
(Concerning the Action for the Recovery of an Estate.)
1 Gaius libro sexto ad edictum provinciale. Hereditas ad nos pertinet aut vetere iure aut novo. vetere e lege duodecim tabularum vel ex testamento, quod iure factum est
1 Gaius, 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:
2 Ulpianus libro quinto decimo ad edictum. (sive suo nomine sive per se sive per alios effecti sumus,
2 Ulpianus, On the Edict, Book XV. Whether we become heirs directly by our own acts, or by those of others;
3 Gaius libro sexto ad edictum provinciale. veluti si eam personam, quae in nostra potestate sit, institutam iusserimus adire hereditatem: sed et si Titio, qui Seio heres extitit, nos heredes facti sumus, sicuti Titii hereditatem nostram esse intendere possumus, ita et Seii) vel ab intestato (forte quod sui heredes defuncto sumus, vel adgnati, vel quod manumisimus defunctum, quodve parens noster manumiserit). novo iure fiunt heredes omnes qui ex senatus consultis aut ex constitutionibus ad hereditatem vocantur.
3 Gaius, 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.
4 Paulus libro primo ad edictum. Si hereditatem petam ab eo, qui unam rem possidebat, de qua sola controversia erat, etiam id quod postea coepit possidere restituet.
4 Paulus, 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.
5 Ulpianus libro quarto decimo ad edictum. Divus Pius rescripsit prohibendum possessorem hereditatis, de qua controversia erit, antequam lis inchoaretur, aliquid ex ea distrahere: nisi maluerit pro omni quantitate hereditatis vel rerum eius restitutione satisdare: causa autem cognita, etsi non talis data sit satisdatio, sed solita cautio, etiam post litem coeptam. deminutionem se concessurum praetor edixit, ne in totum deminutio impedita in aliquo etiam utilitates alias impediat. ut puta si ad funus sit aliquid necessarium: nam funeris gratia deminutionem permittit. item si futurum est, ut, nisi pecunia intra diem solvatur, pignus distrahatur. sed et propter familiae cibaria necessaria erit deminutio. sed et res tempore perituras permittere debet praetor distrahere. 1Divus Hadrianus Trebio Sergiano rescripsit, ut Aelius Asiaticus daret satis de hereditate quae ab eo petitur, et sic falsum dicat: hoc ideo, quia sustinetur hereditatis petitionis iudicium, donec falsi causa agatur. 2Eorum iudiciorum, quae de hereditatis petitione sunt, ea auctoritas est, ut nihil in praeiudicium eius iudicii fieri debeat.
5 Ulpianus, 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.
6 Idem libro septuagensimo quinto ad edictum. Si testamentum falsum esse dicatur et ex eo legatum petatur, vel praestandum est oblata cautione vel quaerendum an debeatur, etsi testamentum falsum esse dicatur. ei tamen qui falsi accusat, si suscepta cognitio est, non est dandum.
6 The 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.
7 Idem libro quarto decimo ad edictum. Si quis libertatem ex testamento sibi competisse dicat, non debebit iudex de libertate sententiam dicere, ne praeiudicium de testamento cognituro faciat: et ita senatus censuit: sed et divus Traianus rescripsit differendum de libertate iudicium, donec de inofficioso iudicium aut inducatur aut finem accipiat. 1Ita demum autem sustinentur liberalia iudicia, si iam de inofficioso iudicium contestatum est: ceterum si non contestetur, non exspectantur liberalia iudicia: et ita divus Pius rescripsit. nam cum quidam Licinnianus de statu suo quaestionem patiebatur et, ne maturius pronuntiaretur de condicione sua, nolebat ad liberale iudicium ire, dicens suscepturum se de inofficioso testamento iudicium et petiturum hereditatem, quia libertatem et hereditatem ex testamento sibi defendebat: divus Pius ait, si quidem possessor esset hereditatis Licinnianus, facilius audiendum, quoniam esset hereditatis nomine iudicium suscepturus et erat in arbitrio eius, qui se dominum esse dicit, agere de inofficioso testamento iudicium. nunc vero sub obtentu iudicii de inofficioso testamento ab ipso Licinniano non suscepti per quinquennium non debere moram fieri servituti. plane summatim aestimandum iudici concessit, an forte bona fide imploretur iudicium de testamento: et si id depraehenderit, praestituendum modicum tempus, intra quod si non fuerit contestatum, iubeat iudicem libertatis partibus suis fungi. 2Quotiens autem quis patitur controversiam libertatis et hereditatis, sed se non ex testamento liberum dicit, sed alias vel a vivo testatore manumissum, non debere impediri liberalem causam, licet iudicium de testamento moveri speretur, divus Pius rescripsit: adiecit plane in rescripto, dummodo praedicatur iudici liberalis causae, ne ullum adminiculum libertatis ex testamento admittat.
7 The 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. 1Trials 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”.
8 Paulus libro sexto decimo ad edictum. Legitimam hereditatem vindicare non prohibetur is qui, cum ignorabat vires testamenti, iudicium defuncti secutus est.
8 Paulus, 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.
9 Ulpianus libro quinto decimo ad edictum. Regulariter definiendum est eum demum teneri petitione hereditatis, qui vel ius pro herede vel pro possessore possidet vel rem hereditariam
9 Ulpianus, 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.”
10 Gaius libro sexto ad edictum provinciale. licet minimam. 1Itaque qui ex asse vel ex parte heres est, intendit quidem hereditatem suam esse totam vel pro parte, sed hoc solum ei officio iudicis restituitur quod adversarius possidet, aut totum, si ex asse sit heres, aut pro parte ex qua heres est.
10 Gaius, 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.
11 Ulpianus libro quinto decimo ad edictum. Pro herede possidet, qui putat se heredem esse. sed an et is, qui scit se heredem non esse, pro herede possideat, quaeritur: et Arrianus libro secundo de interdictis putat teneri, quo iure nos uti Proculus scribit. sed enim et bonorum possessor pro herede videtur possidere. 1Pro possessore vero possidet praedo,
11 Ulpianus, 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”,
12 Idem libro sexagensimo septimo ad edictum. qui interrogatus cur possideat, responsurus sit ‘quia possideo’ nec contendet se heredem vel per mendacium,
12 The 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:
13 Idem libro quinto decimo ad edictum. nec ullam causam possessionis possit dicere: et ideo fur et raptor petitione hereditatis tenentur. 1Omnibus etiam titulis hic pro possessore haeret et quasi iniunctus est. denique et pro emptore titulo haeret: nam si a furioso emero sciens, pro possessore possideo. item in titulo pro donato quaeritur, an quis pro possessore possideat, ut puta uxor vel maritus: et placet nobis Iuliani sententia pro possessore possidere eum, et ideo petitione hereditatis tenebitur. item pro dote titulus recipit pro possessore possessionem, ut puta si a minore duodecim annis nupta mihi quasi dotem sciens accepi. et si legatum mihi solutum est ex falsa causa scienti, utique pro possessore possidebo. 2Is autem qui restituit hereditatem teneri hereditatis petitione non potest, nisi dolo fecit, id est si scit et restituit: nam et dolus praeteritus venit in hereditatis petitione, quasi dolo desierit possidere. 3Neratius libro sexto membranarum scribit ab herede peti hereditatem posse, etiam si ignoret pro herede vel pro possessore defunctum possedisse. idem esse libro septimo ait etiam si putavit heres eas res ex hac hereditate esse quae sibi delata est. 4Quid si quis hereditatem emerit, an utilis in eum petitio hereditatis deberet dari, ne singulis iudiciis vexaretur? venditorem enim teneri certum est: sed finge non extare venditorem vel modico vendidisse et bonae fidei possessorem fuisse: an porrigi manus ad emptorem debeant? et putat Gaius Cassius dandam utilem actionem. 5Idem erit dicendum et si parvo pretio iussus vendere heres Titio hereditatem vendidit: nam putat dicendum Papinianus adversus fideicommissarium dari actionem: ab herede enim peti non expedit perexiguum pretium habente. 6Sed et si retenta certa quantitate restituere rogatus sit, idem erit dicendum. plane si accepta certa quantitate restituere rogatus est, non putat Papinianus ab herede petendam hereditatem, quoniam pro herede, quod condicionis implendae gratia accepit, non possidetur. sed Sabinus in statulibero contra: et id verius est, quia pecunia hereditaria est. 7Idem et in eo qui solos fructus ex hereditate retinet, dicendum erit: tenetur enim et is hereditatis petitione. 8Si quis sciens alienam emit hereditatem, quasi pro possessore possidet: et sic peti ab eo hereditatem quidam putant. quam sententiam non puto veram: nemo enim praedo est qui pretium numeravit: sed ut emptor universitatis utili tenetur. 9Item si quis a fisco hereditatem quasi vacantem emerit, aequissimum erit utilem actionem adversus eum dari. 10Apud Marcellum libro quarto digestorum relatum est, si mulier hereditatem in dotem dedit, maritum pro dote quidem possidere hereditatem, sed petitione hereditatis utili teneri: sed et ipsam mulierem directa teneri Marcellus scribit, maxime si iam factum divortium est. 11Heredem autem etiam earum rerum nomine, quas defunctus pro emptore possedit, hereditatis petitione teneri constat, quasi pro herede possideat: quamvis etiam earum rerum nomine, quas pro herede vel pro possessore defunctus possedit, utique teneatur. 12Si quis absentis nomine possideat hereditatem, cum sit incertum an ille ratum habeat, puto absentis nomine petendam hereditatem, ipsius vero nequaquam, quia non videtur pro herede vel pro possessore possidere, qui contemplatione alterius possidet: nisi forte quis dixerit, cum ratum non habet, iam procuratorem quasi praedonem esse: tunc enim suo nomine teneri potest. 13Non solum autem ab eo peti hereditas potest, qui corpus hereditarium possidet, sed et si nihil. et videndum, si non possidens optulerit tamen se petitioni, an teneatur. et Celsus libro quarto digestorum scribit ex dolo eum teneri: dolo enim facere eum qui se offert petitioni. quam sententiam generaliter Marcellus apud Iulianum probat: omnem, qui se offert petitioni, quasi possidentem teneri. 14Item si quis dolo fecerit, quo minus possideat, hereditatis petitione tenebitur. sed si alius nanctus possessionem, quam ego dolo malo amiseram, paratus sit iudicium pati, Marcellus libro quarto digestorum tractat, ne forte evanescat adversus eum qui desiit litis aestimatio: et magis evanescere ait, nisi petentis interest: certe, inquit, si rem paratus sit restituere, indubitatum erit evanescere. sed si is qui dolo desiit ante conveniatur, eum qui possidet non liberabit. 15Item a debitore hereditario quasi a iuris possessore: nam et a iuris possessoribus posse hereditatem peti constat.
13 The 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. 4How 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. 9Moreover, 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.
14 Paulus libro vicensimo ad edictum. Sed utrum ex delicto an ex contractu debitor sit, nihil refert. debitor autem hereditarius intellegitur is quoque qui servo hereditario promisit, vel qui ante aditam hereditatem damnum dedit
14 Paulus, 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,
15 Gaius libro sexto ad edictum provinciale. vel aliquam rem hereditariam subripuerit.
15 Gaius, On the Provincial Edict, Book VI. Or someone who stole something from the estate.
16 Ulpianus libro quinto decimo ad edictum. Quod si in diem sit debitor vel sub condicione, a quo petita est hereditas, non debere eum damnari. rei plane iudicatae tempus spectandum esse secundum Octaveni sententiam, ut apud Pomponium scriptum est, an dies venerit: quod et in stipulatione condicionali erit dicendum. si autem non venerit, cavere officio iudicis debeat de restituendo hoc debito, cum dies venerit vel condicio extiterit. 1Sed et is qui pretia rerum hereditariarum possidet, item qui a debitore hereditario exegit, petitione hereditatis tenetur. 2Unde Iulianus libro sexto digestorum ait ab eo, qui petit hereditatem et litis aestimationem consecutus est, hereditatem peti posse. 3Non solum autem a debitore defuncti, sed etiam a debitore hereditario peti hereditas potest: denique ab eo, qui negotia hereditaria gessit, et Celso et Iuliano videtur peti hereditatem posse, sed si heredis negotium gessit, nequaquam: ab heredis enim debitore peti hereditas non potest. 4Iulianus scribit, si is, qui pro herede possidebat, vi fuerit deiectus, peti ab eo hereditatem posse quasi a iuris possessore, quia habet interdictum unde vi, quo victus cedere debet: sed et eum qui deiecit petitione hereditatis teneri, quia res hereditarias pro possessore possidet. 5Idem Iulianus ait, sive quis possidens sive non rem vendiderit, petitione hereditatis eum teneri, sive iam pretium recepit sive petere possit, ut et hic actionibus cedat. 6Idem scribit patronum hereditatem petere non posse ab eo, cui libertus in fraudem alienavit, quia Calvisiana actione ei tenetur: patroni enim iste debitor est, non hereditarius. ergo nec ab eo, cui mortis causa donatum est, peti hereditas potest. 7Idem Iulianus scribit, si quis ex causa fideicommissi restituerit hereditatem vel singulas res praestiterit, peti ab eo hereditatem posse, quia habet condictionem earum, quae sunt ex ea causa solutae, et veluti iuris possessor est. 8Sed et si pretia rerum, quas distraxit, ex causa fideicommissi solvit, peti hereditatem ab eo posse, quia repetere potest. sed his casibus actiones suas dumtaxat eum praestaturum, cum et res exstant et potest petitor etiam per in rem actionem eas vindicare.
16 Ulpianus, 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. 7Julianus 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.
17 Gaius libro sexto ad edictum provinciale. Quod si possessor hereditatis ob id, quod ex testamento heredem se esse putaret, legatorum nomine de suo solvit, si quis ab intestato eam hereditatem evincat, licet damnum videtur esse possessoris, quod sibi non prospexerit stipulatione ‘evicta hereditate legata reddi’, attamen quia fieri potest, ut eo tempore solverit legata, quo adhuc nulla controversia mota sit, et ob id nullam interposuerit cautionem, placet in eo casu evicta hereditate dandam ei esse repetitionem. sed cum cessante cautione repetitio datur, periculum est, ne propter inopiam eius, cui solutum est legatum, nihil repeti possit, et ideo secundum senatus consulti sententiam subveniendum ei est, ut ipse quidem ex retentione rerum hereditariarum sibi satisfaciat, cedat autem actionibus petitori, ut suo periculo eas exerceat.
17 Gaius, 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.
18 Ulpianus libro quinto decimo ad edictum. Item videndum, si possessor hereditatis venditione per argentarium facta pecuniam apud eum perdiderit, an petitione hereditatis teneatur, quia nihil habet nec consequi potest. sed Labeo putat eum teneri, quia suo periculo male argentario credidit: sed Octavenus ait nihil eum praeter actiones praestaturum, ob has igitur actiones petitione hereditatis teneri. mihi autem in eo, qui mala fide possedit, Labeonis sententia placet: in altero vero, qui bona fide possessor est, Octaveni sententia sequenda esse videtur. 1Si quis, cum peteretur ab eo hereditas, neque rei neque iuris velut possessor erat, verum postea aliquid adeptus est, an petitione hereditatis videatur teneri? et Celsus libro quarto digestorum recte scribit hunc condemnandum, licet initio nihil possedit. 2Nunc videamus, quae veniant in hereditatis petitione. et placuit universas res hereditarias in hoc iudicium venire, sive iura sive corpora sint,
18 Ulpianus, 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.
19 Paulus libro vicensimo ad edictum. et non tantum hereditaria corpora, sed et quae non sunt hereditaria, quorum tamen periculum ad heredem pertinet: ut res pignori datae defuncto vel commodatae depositaeve. et quidem rei pignori datae etiam specialis petitio est, ut et hereditatis petitione contineatur, sicut illae quarum nomine Publiciana competit. sed licet earum nomine, quae commodatae vel depositae sunt, nulla sit facile actio, quia tamen periculum earum ad nos pertinet, aequum est eas restitui. 1Quod si pro emptore usucapio ab herede impleta sit, non veniet in hereditatis petitione: quia heres, id est petitor, eam vindicare potest nec ulla exceptio datur possessori. 2Veniunt et hae res in hereditatis petitionem, in quibus possessor retentionem habuit, non etiam petitionem: veluti si iuraverat defunctus petitoris rem non esse et decesserit, debent hae quoque restitui. immo et si possessor sua culpa eas amiserit, tenebitur hoc nomine. idemque erit et in praedone, licet hic propter culpam non teneatur: quia nec hic debet has res retinere. 3Servitutes in restitutionem hereditatis non venire ego didici, cum nihil eo nomine possit restitui, sicut est in corporibus et fructibus, sed si non patiatur ire et agere, propria actione convenietur.
19 Paulus, 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.
20 Ulpianus libro quinto decimo ad edictum. Item veniunt in hereditatem etiam ea, quae hereditatis causa comparata sunt, ut puta mancipia pecoraque et si qua alia, quae necessario hereditati sunt comparata. et si quidem pecunia hereditaria sint comparata, sine dubio venient: si vero non pecunia hereditaria, videndum erit: et puto etiam haec venire, si magna utilitas hereditatis versetur, pretium scilicet restituturo herede. 1Sed non omnia, quae ex hereditaria pecunia comparata sunt, in hereditatis petitionem veniunt. denique scribit Iulianus libro sexto digestorum, si possessor ex pecunia hereditaria hominem emerit et ab eo petatur hereditas, ita venire in hereditatis petitionem, si hereditatis interfuit eum emi: at si sui causa emit, pretium venire. 2Simili modo et si fundum hereditarium distraxerit, si quidem sine causa, et ipsum fundum et fructus in hereditatis petitionem venire: quod si aeris exsolvendi gratia hereditarii id fecit, non amplius venire quam pretium. 3Item non solum ea quae mortis tempore fuerunt, sed si qua postea augmenta hereditati accesserunt, venire in hereditatis petitionem: nam hereditas et augmentum recipit et deminutionem. sed ea, quae post aditam hereditatem accedunt, si quidem ex ipsa hereditate, puto hereditati accedere: si extrinsecus, non, quia personae possessoris accedunt. fructus autem omnes augent hereditatem, sive ante aditam sive post aditam hereditatem accesserint. sed et partus ancillarum sine dubio augent hereditatem. 4Cum praediximus omnes hereditarias actiones in hereditatis petitionem venire, quaeritur, utrum cum sua natura veniant an contra. ut puta est quaedam actio, quae infitiatione crescit: utrum cum suo incremento an vero in simplum venit, ut legis Aquiliae? et Iulianus libro sexto digestorum scribit simplum soluturum. 5Idem recte ait, si noxali iudicio condemnatus sit possessor defuncto, non posse eum dedentem noxae officio iudicis liberari: quia tamdiu quis habet noxae dedendae facultatem, quamdiu iudicati conveniatur, post susceptum iudicium non potest noxae dedendo se liberare: suscepit autem per petitionem hereditatis. 6Praeter haec multa repperimus tractata et de petitione hereditatis, de distractis rebus hereditariis, de dolo praeterito et de fructibus. de quibus cum forma senatus consulto sit data, optimum est ipsius senatus consulti interpretationem facere verbis eius relatis. ‘pridie idus Martias Quintus Iulius Balbus et Publius Iuventius Celsus Titius Aufidius Oenus Severianus consules verba fecerunt de his, quae imperator Caesar Traiani Parthici filius divi Nervae nepos Hadrianus Augustus imperator maximusque princeps proposuit quinto nonas Martias quae proximae fuerunt libello complexus esset, quid fieri placeat, de qua re ita censuerunt. 6aCum, antequam partes caducae ex bonis rustici fisco peterentur, hi, qui se heredes esse existimant, hereditatem distraxerint, placere redactae ex pretio rerum venditarum pecuniae usuras non esse exigendas idemque in similibus causis servandum. 6bItem placere, a quibus hereditas petita fuisset, si adversus eos iudicatum esset, pretia, quae ad eos rerum ex hereditate venditarum pervenissent, etsi eae ante petitam hereditatem deperissent deminutiaeve fuissent, restituere debere. 6cItem eos qui bona invasissent, cum scirent ad se non pertinere, etiamsi ante litem contestatam fecerint, quo minus possiderent, perinde condemnandos, quasi possiderent: eos autem, qui iustas causas habuissent, quare bona ad se pertinere existimassent, usque eo dumtaxat, quo locupletiores ex ea re facti essent. 6dPetitam autem fisco hereditatem ex eo tempore existimandum esse, quo primum scierit quisque eam a se peti, id est cum primum aut denuntiatum esset ei aut litteris vel edicto evocatus esset. censuerunt’. aptanda est igitur nobis singulis verbis senatus consulti congruens interpretatio. 7Ait senatus: ‘cum antequam partes caducae fisco peterentur’. hoc evenerat, ut partes caducae fisco peterentur: sed et si ex asse fiat, senatus consultum locum habebit: idem, et si vacantia bona fisco vindicentur vel si ex alia quacumque causa bona ad eum pervenerunt, senatus consultum hoc locum habebit: 8et si civitati peteretur. 9In privatorum quoque petitionibus senatus consultum locum habere nemo est qui ambigit, licet in publica causa factum sit. 10Non solum autem in hereditate utimur senatus consulto, sed et in peculio castrensi vel alia universitate. 11‘Petitam autem hereditatem’ et cetera: id est ex quo quis scit a se peti: nam ubi scit, incipit esse malae fidei possessor. ‘id est cum primum aut denuntiatum esset’: quid ergo si scit quidem, nemo autem ei denuntiavit, an incipiat usuras debere pecuniae redactae? et puto debere: coepit enim malae fidei possessor esse. sed ponamus denuntiatum esse, non tamen scit, quia non ipsi, sed procuratori eius denuntiatum est: senatus ipsi denuntiari exigit et ideo non nocebit, nisi forte is cui denuntiatum est eum certioraverit, sed non si certiorare potuit nec fecit. a quo denuntiatum est senatus non exigit: quicumque ergo fuit qui denuntiavit, nocebit. 12Haec adversus bonae fidei possessores, nam ita senatus locutus est: ‘eos qui se heredes existimassent’. ceterum si quis sciens ad se hereditatem non pertinere distraxit, sine dubio non pretia rerum, sed ipsae res veniunt in petitionem hereditatis et fructus earum. sed imperator Severus epistula ad celerem idem videtur fecisse et in malae fidei possessoribus: atquin senatus de his est locutus qui se heredes existimant. nisi forte ad eas res referemus, quas distrahi expedierat, quae onerabant magis hereditatem quam fructui erant: ut sit in arbitrio petitoris, qualem computationem faciat adversus malae fidei possessorem, utrum ipsius rei et fructuum an pretii et usurarum post motam controversiam. 13Licet autem senatus de his locutus sit, qui se heredes existiment, tamen et si bonorum possessores se existiment vel alios successores iustos vel sibi restitutam hereditatem, in eadem erunt condicione. 14Papinianus autem libro tertio quaestionum, si possessor hereditatis pecuniam inventam in hereditate non attingat, negat eum omnino in usuras conveniendum. 15‘Redactae’, inquit, ‘pecuniae ex pretio rerum venditarum.’ redactam sic accipiemus, non solum iam exactam, verum et si exigi potuit nec exacta est. 16Quid si post petitam hereditatem res distraxerit? hic ipsae res venient fructusque earum. sed si forte tales fuerunt, quae vel steriles erant vel tempore periturae, et hae distractae sunt vero pretio, fortassis possit petitor eligere, ut sibi pretia et usurae praestentur. 17Ait senatus: ‘placere, a quibus petita hereditas fuisset, si adversus eos iudicatum esset, pretia, quae ad eos rerum ex hereditate venditarum pervenissent, etsi ante petitam hereditatem deperissent deminutaeve essent, restituere debere.’ bonae fidei possessor si vendiderit res hereditarias, sive exegit pretium sive non, quia habet actionem, debebit pretium praestare: sed ubi habet actionem, sufficiet eum actiones praestare. 18Sed si vendidit et evicta re restituit quod accepit, non videbitur ad eum pervenisse: quamquam possit dici nec ab initio pretium venire, quia non fuit res hereditaria quae distracta est: sed etsi senatus rerum ex hereditate distractarum, non hereditariarum fecit mentionem, restitui tamen non debet, quia nihil apud eum remanet. nam et Iulianus libro sexto digestorum scribit quod indebitum exegit restituere eum non debere nec imputaturum quod non debitum solvit. 19Sed si res sit redhibita, hic utique et hereditaria est et pretium non veniet quod refusum est. 20Sed et si ob venditionem obstrictus sit emptori possessor hereditatis, dicendum erit prospici ei cautione. 21Restituere autem pretia debebit possessor, etsi deperditae sunt res vel deminutae. sed utrum ita demum restituat, si bonae fidei possessor est, an et si malae fidei? et si quidem res apud emptorem exstent nec deperditae nec deminutae sunt, sine dubio ipsas res debet praestare malae fidei possessor aut, si recipere eas ab emptore nullo modo possit, tantum quantum in litem esset iuratum. at ubi deperditae sunt et deminutae, verum pretium debet praestari, quia si petitor rem consecutus esset, distraxisset et verum pretium rei non perderet.
20 Ulpianus, 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. 2In 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. 21The 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.
21 Gaius libro sexto ad edictum provinciale. Deperditum intellegitur, quod in rerum natura esse desiit: deminutum vero, quod usucaptum esset et ob id de hereditate exiit.
21 Gaius, 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.
22 Paulus libro vicensimo ad edictum. Si et rem et pretium habeat bonae fidei possessor, puta quod eandem redemerit: an audiendus sit, si velit rem dare, non pretium? in praedone dicimus electionem esse debere actoris: an hic magis possessor audiendus sit, si velit rem tradere licet deteriorem factam, non petitor, si pretium desideret, quod inverecundum sit tale desiderium: an vero, quia ex re hereditaria locupletior sit, et id quod amplius habet ex pretio restituere debeat, videndum. nam et in oratione divi Hadriani ita est: ‘Dispicite, patres conscripti, numquid sit aequius possessorem non facere lucrum et pretium, quod ex aliena re perceperit, reddere, quia potest existimari in locum hereditariae rei venditae pretium eius successisse et quodammodo ipsum hereditarium factum.’ oportet igitur possessorem et rem restituere petitori et quod ex venditione eius rei lucratus est.
22 Paulus, 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.
23 Ulpianus libro quinto decimo ad edictum. Utrum autem omne pretium restituere debebit bonae fidei possessor an vero ita demum, si factus sit locupletior, videndum: finge pretium acceptum vel perdidisse vel consumpsisse vel donasse. et verbum quidem pervenisse ambiguum est, solumne hoc contineret, quod prima ratione fuerit, an vero et id quod durat. et puto sequentem clausulam senatus consulti, etsi haec sit ambigua, ut ita demum competat, si factus sit locupletior. 1Proinde si non solum pretium, sed etiam poena tardius pretio soluto pervenerit, poterit dici, quia locupletior in totum factus est, debere venire, licet de pretio solummodo senatus sit locutus.
23 Ulpianus, 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.
24 Paulus libro vicensimo ad edictum. At ubi vi deiectus fuit, non debet restituere poenam ex eo commissam, quod eam actor habere non potest. sic nec poena restitui debet, quam adversarius ei promisit, si ad iudicium non venerit.
24 Paulus, 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.
25 Ulpianus libro quinto decimo ad edictum. Sed et si lege commissoria vendidit, idem erit dicendum lucrum, quod sensit lege commissoria, praestaturum. 1Item si rem distraxit et ex pretio aliam rem comparavit, veniet pretium in petitionem hereditatis, non res quam in patrimonium suum convertit. sed si res minoris valet quam comparata est, hactenus locupletior factus videbitur, quatenus res valet: quemadmodum si consumpsisset, in totum locupletior factus non videbitur. 2Quod ait senatus: ‘eos qui bona invasissent, quae scirent ad se non pertinere, etiam si ante litem contestatam fecerint quo minus possiderent, perinde condemnandos quasi possiderent’, ita intellegendum est, ut et dolus praeteritus in petitionem hereditatis deduceretur: sed et culpa. et ideo ab eo qui ab alio non exegit vel a semet ipso, si tempore esset liberatus, peti hereditatem posse: hoc utique si exigere potuit. 3Quod autem ait senatus ‘eos qui bona invasissent’, loquitur de praedonibus, id est de his qui, cum scirent ad se non pertinere hereditatem, invaserunt bona, scilicet cum nullam causam haberent possidendi. 4Sed et fructus non quos perceperunt, inquit, sed quos percipere debuerunt, eos praestaturos. 5De eo autem loquitur senatus, qui ab initio mente praedonis res hereditarias adprehendit. quod si ab initio quidem iustam causam habuit adipiscendae possessionis, postea vero conscius ad se nihil hereditatem pertinere praedonio more versari coepit, nihil senatus loqui videtur: puto tamen et ad eum mentem senatus consulti pertinere: parvi etenim refert, ab initio quis dolose in hereditate sit versatus an postea hoc facere coepit. 6Scire ad se non pertinere utrum is tantummodo videtur, qui factum scit, an et is qui in iure erravit? putavit enim recte factum testamentum, cum inutile erat: vel cum eum alius praecederet adgnatus, sibi potius deferri. et non puto hunc esse praedonem qui dolo caret, quamvis in iure erret. 7‘Si ante litem contestatam’, inquit, ‘fecerit’: hoc ideo adiectum, quoniam post litem contestatam omnes incipiunt malae fidei possessores esse, quin immo post controversiam motam. quamquam enim litis contestatae mentio fiat in senatus consulto, tamen et post motam controversiam omnes possessores pares fiunt et quasi praedones tenentur. et hoc iure hodie utimur: coepit enim scire rem ad se non pertinentem possidere se is qui interpellatur. qui vero praedo est, et ante litem contestatam doli nomine tenebitur: hic est enim dolus praeteritus. 8‘Perinde’, inquit, ‘condemnandos quasi possiderent’: merito: nam is qui dolo fecit quo minus possideret, ut possessor condemnatur. accipies, sive dolo desierit possidere sive dolo possessionem noluerit admittere. sive autem ab alio res possideatur sive in totum non extet, locum habebit haec clausula. unde si sit alius possessor, ab utroque hereditas peti possit: et si per multos ambulaverit possessio, omnes tenebuntur. 9Sed utrum is solus qui possidet fructus praestabit an etiam is qui dolo fecit quo minus possideret? et dicendum erit post senatus consultum ambo teneri. 10Haec verba senatus consulti etiam adversus eum qui non possidet iusiurandum inducunt: tam enim adversus eum qui dolo fecit quo minus possideat quam adversus possidentem in litem iuratur. 11Consuluit senatus bonae fidei possessoribus, ne in totum damno adficiantur, sed in id dumtaxat teneantur, in quo locupletiores facti sunt. quemcumque igitur sumptum fecerint ex hereditate, si quid dilapidaverunt perdiderunt, dum re sua se abuti putant, non praestabunt. nec si donaverint, locupletiores facti videbuntur, quamvis ad remunerandum sibi aliquem naturaliter obligaverunt. plane si ἀντίδωρα acceperunt, dicendum est eatenus locupletiores factos, quatenus acceperunt: velut genus quoddam hoc esset permutationis. 12Si quis re sua lautius usus sit contemplatione delatae sibi hereditatis, Marcellus libro quinto digestorum putat nihil eum ex hereditate deducturum, si eam non attigit. 13Simili modo et si mutuam pecuniam accepit, quasi dives se deceperit. 14Si tamen pignori res hereditarias dedit, videndum, an vel sic attingatur hereditas: quod est difficile, cum ipse sit obligatus. 15Adeo autem qui locupletior factus non est non tenetur, ut si quis putans se ex asse heredem partem dimidiam hereditatis sine dolo malo consumpserit, Marcellus libro quarto digestorum tractat, num non teneatur, quasi id quod erogaverit ex eo fuerit, quod ad eum non pertinebat, sed ad coheredes: nam et si is qui heres non erat totum, quidquid apud se fuit, consumpsisset, sine dubio non tenetur, quasi locupletior non factus. sed in proposita quaestione tribus visionibus relatis, una prima: deinde alia posse dici totum quod superest restituere eum debere, quasi suam partem consumpserit: tertia utrique quod consumptum est decedere: ait utique nonnihil restituendum, de illo dubitat, utrum totum an partem restituendam dicat: puto tamen residuum integrum non esse restituendum, sed partem eius dimidiam. 16Quod autem quis ex hereditate erogavit, utrum totum decedat an vero pro rata patrimonii eius? ut puta penum hereditarium ebibit: utrum totum hereditati expensum feratur an aliquid et patrimonio eius? ut in id factus locupletior videatur, quod solebat ipse erogare ante delatam hereditatem: ut si quid lautius contemplatione hereditatis impendit, in hoc non videatur factus locupletior, in statutis vero suis sumptibus videatur factus locupletior: utique enim etsi non tam laute erogasset, aliquid tamen ad victum cottidianum erogasset. nam et divus Marcus in causa Pythodori, qui rogatus erat quod sibi superfuisset ex hereditate reddere, decrevit ea, quae alienata erant non minuendi fideicommissi nec pretium in corpus patrimonii Pythodori redisse, et ex proprio Pythodori patrimonio et ex hereditate decedere, non tantum ex hereditate. et nunc igitur statuti sumptus utrum ex hereditate decedent exemplo rescripti divi Marci an ex solo patrimonio, videndum erit: et verius est, ut ex suo patrimonio decedant ea quae et si non heres fuisset erogasset. 17Item si rem distraxit bonae fidei possessor nec pretio factus sit locupletior, an singulas res, si nondum usucaptae sint, vindicare petitor ab emptore possit? et si vindicet, an exceptione non repellatur ‘quod praeiudicium hereditati non fiat inter actorem et eum qui venum dedit’, quia non videtur venire in petitionem hereditatis pretium earum, quamquam victi emptores reversuri sunt ad eum qui distraxit? et puto posse res vindicari, nisi emptores regressum ad bonae fidei possessorem habent. Quid tamen si is qui vendidit paratus sit ita defendere hereditatem, ut perinde atque si possideret conveniatur? incipit exceptio locum habere ex persona emptorum. certe si minori pretio res venierint et pretium quodcumque illud actor sit consecutus, multo magis poterit dici exceptione eum summoveri. nam et si id quod a debitoribus exegit possessor petitori hereditatis solvit, liberari debitores Iulianus libro quarto digestorum scribit, sive bonae fidei possessor sive praedo fuit qui debitum ab his exegerat, et ipso iure eos liberari. 18Petitio hereditatis, etsi in rem actio sit, habet tamen praestationes quasdam personales, ut puta eorum quae a debitoribus sunt exacta, item pretiorum. 19Hoc senatus consultum ad petitionem hereditatis factum etiam in familiae herciscundae iudicio locum habere placet, ne res absurda sit, ut quae peti possint dividi non possint. 20Augent hereditatem gregum et pecorum partus.
25 Ulpianus, 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. 2When 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. 17Moreover, 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.
26 Paulus libro vicensimo ad edictum. Quod si oves natae sunt, deinde ex his aliae, hae quoque quasi augmentum restitui debent.
26 Paulus, 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.
27 Ulpianus libro quinto decimo ad edictum. Ancillarum etiam partus et partuum partus quamquam fructus esse non existimantur, quia non temere ancillae eius rei causa comparantur ut pariant, augent tamen hereditatem: quippe cum ea omnia fiunt hereditaria, dubium non est, quin ea possessor, si aut possideat aut post petitam hereditatem dolo malo fecit quo minus possideret, debeat restituere. 1Sed et pensiones, quae ex locationibus praediorum urbanorum perceptae sunt, venient, licet a lupanario perceptae sint: nam et in multorum honestorum virorum praediis lupanaria exercentur.
27 Ulpianus, 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.
28 Paulus libro vicensimo ad edictum. Post senatus consultum enim omne lucrum auferendum esse tam bonae fidei possessori quam praedoni dicendum est.
28 Paulus, 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.
29 Ulpianus libro quinto decimo ad edictum. Mercedes plane a colonis acceptae loco sunt fructuum. operae quoque servorum in eadem erunt causa, qua sunt pensiones: item vecturae navium et iumentorum.
29 Ulpianus, 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.
30 Paulus libro vicensimo ad edictum. Iulianus scribit actorem eligere debere, utrum sortem tantum an et usuras velit cum periculo nominum agnoscere. atquin secundum hoc non observabimus quod senatus voluit, bonae fidei possessorem teneri quatenus locupletior sit: quid enim si pecuniam eligat actor, quae servari non potest? dicendum itaque est in bonae fidei possessore haec tantummodo eum praestare debere, id est vel sortem et usuras eius si et eas percepit, vel nomina cum eorum cessione in id facienda, quod ex his adhuc deberetur, periculo scilicet petitoris.
30 Paulus, 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.
31 Ulpianus libro quinto decimo ad edictum. Si quid possessor solvit creditoribus, reputabit, quamquam ipso iure non liberaverit petitorem hereditatis: nam quod quis suo nomine solvit, non debitoris, debitorem non liberat. et ideo Iulianus libro sexto digestorum scribit ita id imputaturum possessorem, si caverit se petitorem defensum iri. sed an et bonae fidei possessor debeat defendendum cavere, videndum erit, quia in eo quod solvit non videtur locupletior factus: nisi forte habeat condictionem et hoc nomine videtur locupletior, quia potest repetere: finge enim eum, dum se heredem putat, solvisse suo nomine. et videtur mihi Iulianus de solo praedone ut caveat sensisse, non etiam de bonae fidei possessore: condictionem tamen praestare debebit. sed et petitor si a creditoribus conveniatur, exceptione uti debebit. 1Sed si ipsi aliquid praedoni debebatur, hoc deducere non debebit: maxime si id fuit debitum, quod natura debebatur. quid tamen si expediebat petitori id debitum esse dissolutum propter poenam vel aliam causam? potest dici ipsum sibi vel solvisse vel debuisse solvere. 2Iustus autem possessor dubio procul debebit deducere, quod sibi debetur. 3Sicut autem sumptum quem fecit deducit, ita si facere debuit nec fecit, culpae huius reddat rationem, nisi bonae fidei possessor est: tunc enim, quia quasi suam rem neglexit, nulli querellae subiectus est ante petitam hereditatem: postea vero et ipse praedo est. 4Illud plane praedoni imputari non potest, cur passus est debitores liberari et pauperiores fieri et non eos convenit, cum actionem non habuerit. 5Quod autem possessori solutum est an restituere debeat, videamus: et si bonae fidei possessor fuit sive non, debere restituere placet, et quidem si restituerit, ut Cassius scribit et Iulianus libro sexto, liberari ipso iure debitores.
31 Ulpianus, 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. 3Just 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.
32 Paulus libro vicensimo ad edictum. Per servum adquisitae res heredi restituendae sunt: quod procedit in hereditate liberti et cum de inofficioso agitur, cum interim in bonis esset heredis:
32 Paulus, 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:
33 Ulpianus libro quinto decimo ad edictum. nisi ex re heredis scripti stipulatus sit. 1Iulianus scribit, si hominem possessor distraxerit, si quidem non necessarium hereditati, petitione hereditatis pretium praestaturum: imputaretur enim ei, si non distraxisset: quod si necessarium hereditati, si quidem vivit, ipsum praestandum, si decesserit, fortassis nec pretium: sed non passurum iudicem qui cognoscit possessorem pretium lucrari scribit, et verius est.
33 Ulpianus, On the Edict, Book XV. Unless the slave entered into a stipulation based on the property of said heir. 1Julianus 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.
34 Paulus libro vicensimo ad edictum. Filii familias militis puto peti posse hereditatem ex testamento nobis obvenientem. 1Si servus vel filius familias res hereditarias teneat, a patre dominove peti hereditas potest, si facultatem restituendarum rerum habet. certe si pretium rerum hereditariarum venditarum in peculio servi habeat, et Iulianus existimat posse a domino quasi a iuris possessore hereditatem peti.
34 Paulus, 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.
35 Gaius libro sexto ad edictum provinciale. Idem Iulianus ait etiam si nondum pretia rerum consecutus sit servus, posse a domino quasi a iuris possessore hereditatem peti, quia habet actionem, qua eam pecuniam consequatur, quae quidem actio etiam ignoranti adquireretur.
35 Gaius, 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”.
36 Paulus libro vicensimo ad edictum. Si a domino vel a patre, qui pretia possidet, hereditas petatur, an filio vel servo mortuo vel servo manumisso vel emancipato filio intra annum agi debeat? et an debitum sibi dominus vel pater deducere potest? Iulianus verius esse ait, id quod Proculus quoque respondit, perpetuo actionem dandam nec deduci oportere id quod ipsi debetur, quia non de peculio agatur, sed hereditas petatur. haec recte, si pretia habeat servus vel filius familias. quod si propterea hereditas petatur a domino, quod servus debitor fuit, perinde haberi debebit, atque si de peculio ageretur. idem dicendum Mauricianus ait etiam si pecuniam ex pretio perceptam servus vel filius consumpserit, sed alias ex peculio eius solvi potest. 1Sed et a filio familias peti hereditatem posse non est dubium, quia restituendi facultatem habet, sicut ad exhibendum. multo magis dicimus posse peti hereditatem a filio familias, qui, cum pater familias esset et possideret hereditatem, adrogandum se praestavit. 2Si possessor hereditarium servum occiderit, id quoque in hereditatis petitione veniet: sed Pomponius ait actorem debere eligere, utrum velit sibi eum condemnari, ut caveat se non acturum lege Aquilia, an malit integram sibi esse actionem legis Aquiliae omissa eius rei aestimatione a iudice. quae electio locum habet, si ante aditam hereditatem occisus sit servus: nam si postea, ipsius actio propria effecta est nec veniet in hereditatis petitionem. 3Si praedo dolo desisset possidere, res autem eo modo interierit, quo esset interitura et si eadem causa possessionis mansisset: quantum ad verba senatus consulti melior est causa praedonis quam bonae fidei possessoris, quia praedo, si dolo desierit possidere, ita condemnatur atque si possideret, nec adiectum esset, si res interierit. sed non est dubium, quin non debeat melioris esse condicionis quam bonae fidei possessor. itaque et si pluris venierit res, electio debebit esse actoris, ut pretium consequatur: alioquin lucretur aliquid praedo. 4Quo tempore locupletior esse debeat bonae fidei possessor, dubitatur: sed magis est rei iudicatae tempus spectandum esse. 5Fructus intelleguntur deductis impensis, quae quaerendorum cogendorum conservandorumque eorum gratia fiunt. quod non solum in bonae fidei possessoribus naturalis ratio expostulat, verum etiam in praedonibus, sicut Sabino quoque placuit.
36 Paulus, 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.
37 Ulpianus libro quinto decimo ad edictum. Quod si sumptus quidem fecit, nihil autem fructuum perceperit, aequissimum erit rationem horum quoque in bonae fidei possessoribus haberi.
37 Ulpianus, 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.
38 Paulus libro vicesimo ad edictum. Plane in ceteris necessariis et utilibus impensis posse separari, ut bonae fidei quidem possessores has quoque imputent, praedo autem de se queri debeat, qui sciens in rem alienam impendit. sed benignius est in huius quoque persona haberi rationem impensarum (non enim debet petitor ex aliena iactura lucrum facere) et id ipsum officio iudicis continebitur: nam nec exceptio doli mali desideratur. plane potest in eo differentia esse, ut bonae fidei quidem possessor omnimodo impensas deducat, licet res non exstet in quam fecit, sicut tutor vel curator consequuntur, praedo autem non aliter, quam si res melior sit.
38 Paulus, 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.
39 Gaius libro sexto ad edictum provinciale. Utiles autem necessariaeque sunt veluti quae fiunt reficiendorum aedificorum gratia: aut in novelleta: aut cum servorum gratia litis aestimatio solvitur, cum id utilius sit quam ipsos dedi: denique alias complures eiusdem generis esse impensas manifestum est. 1Videamus tamen, ne et ad picturarum quoque et marmorum et ceterarum voluptariarum rerum impensas aeque proficiat nobis doli exceptio, si modo bonae fidei possessores simus: nam praedoni probe dicetur non debuisse in alienam rem supervacuas impensas facere: ut tamen potestas ei fieret tollendorum eorum, quae sine detrimento ipsius rei tolli possint.
39 Gaius, 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.
40 Paulus libro vicesimo ad edictum. Illud quoque quod in oratione divi Hadriani est, ut post acceptum iudicium id actori praestetur, quod habiturus esset, si eo tempore quo petit restituta esset hereditas, interdum durum est. quid enim, si post litem contestatam mancipia aut iumenta aut pecora deperierint? damnari debebit secundum verba orationis, quia potuit petitor restituta hereditate distraxisse ea. et hoc iustum esse in specialibus petitionibus Proculo placet: Cassius contra sensit. in praedonis persona Proculus recte existimat, in bonae fidei possessoribus Cassius. nec enim debet possessor aut mortalitatem praestare, aut propter metum huius periculi temere indefensum ius suum relinquere. 1Praedo fructus suos non facit, sed augent hereditatem: ideoque eorum quoque fructus praestabit. in bonae fidei autem possessore hi tantum veniunt in restitutione quasi augmenta hereditatis, per quos locupletior factus est. 2Actiones si quas possessor nanctus est, evicta hereditate restituere debet, veluti si interdictum unde vi, aut quod precario concessit. 3Contra quoque si possessor caverit damni infecti, cavendum est possessori. 4Ad officium iudicis pertinebunt et noxales actiones, ut, si paratus sit possessor noxae dedere servum qui damnum dederit in re hereditaria vel furtum fecerit, absolvatur, sicut fit in interdicto quod vi aut clam.
40 Paulus, 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.
41 Gaius libro sexto ad edictum provinciale. Si quo tempore conveniebatur possessor hereditatis, pauciores res possidebat, deinde aliarum quoque rerum possessionem adsumpsit, eas quoque victus restituere debebit, sive ante acceptum iudicium sive postea adquisierit possessionem. et si fideiussores, quos dederat, ad litem non sufficiant, iubere eum debebit proconsul ut idonee caveat. ex diverso quoque si pauciores postea possidebit, quam initio possidebat, si modo id sine dolo eius acciderit, absolvi debet quod ad eas res quas desiit possidere. 1Fructus computandos etiam earum rerum, quas defunctus pignori accepit, Iulianus ait.
41 Gaius, 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.
42 Ulpianus libro sexagensimo septimo ad edictum. Si debitor hereditarius non ideo nolit solvere, quod se dicat heredem, sed ideo quod neget aut dubitet, an hereditas pertineat ad eum qui petit hereditatem, non tenetur hereditatis petitione.
42 Ulpianus, 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.
43 Paulus libro secundo ad Plautium. Postquam legatum a te accepi, hereditatem peto. Atilicinus quibusdam placuisse ait non aliter mihi adversus te dandam petitionem, quam si legatum redderem. videamus tamen, ne non aliter petitor hereditatis legatum restituere debeat, quam ut ei caveatur, si contra eum de hereditate iudicatum fuerit, reddi ei legatum: cum sit iniquum eo casu possessorem hereditatis legatum, quod solverit, retinere, et maxime si non per calumniam, sed per errorem hereditatem petierit adversarius: idque et Laelius probat. imperator autem Antoninus rescripsit ei, qui legatum ex testamento abstulisset, causa cognita hereditatis petitionem negandam esse, scilicet si manifesta calumnia sit.
43 Paulus, 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.
44 Iavolenus libro primo ex Plautio. Cum is, qui legatum ex testamento percepit, hereditatem petit, si legatum quocumque modo redditum non sit, iudicis officio continetur, ut victori deducto eo quod accepit restituatur hereditas.
44 Javolenus, 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.
45 Celsus libro quarto digestorum. Qui se liti optulit, cum rem non possideret, condemnatur, nisi si evidentissimis probationibus possit ostendere actorem ab initio litis scire eum non possidere: quippe isto modo non est deceptus et qui se hereditatis petitioni optulit ex doli clausula tenetur: aestimari scilicet oportebit, quanti eius interfuit non decipi.
45 Celsus, 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.
46 Modestinus libro sexto differentiarum. Praedonis loco intellegendus est is, qui tacitam fidem interposuerit, ut non capienti restitueret hereditatem.
46 Modestinus, 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.
47 Idem libro octavo responsorum. Lucius Titius cum in falsi testamenti propinqui accusatione non optinuerit, quaero, an de non iure facto nec signato testamento querella illi competere possit. respondit non ideo repelli ab intentione non iure facti testamenti, quod in falsi accusatione non optinuerit.
47 The 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.
48 Iavolenus libro tertio ex Cassio. In aestimationibus hereditatis ita venit pretium venditae hereditatis, ut id quoque accedat, quod plus fuit in hereditate, si ea negotiationis causa veniit: sin autem ex fideicommissi causa, nihil amplius quam quod bona fide accepit.
48 Javolenus, 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.
49 Papinianus libro tertio quaestionum. Si bonae fidei possessor hereditatis velit cum debitoribus hereditariis aut qui res hereditarias occupaverint consistere, audietur, utique si periculum erit, ne inter moras actiones intercidant. petitor autem hereditatis citra metum exceptionis in rem agere poterit: quid enim si possessor hereditatis neglegat? quid si nihil iuris habere se sciat?
49 Papinianus, 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?
50 Idem libro sexto quaestionum. Hereditas etiam sine ullo corpore iuris intellectum habet. 1Si defuncto monumentum condicionis implendae gratia bonae fidei possessor fecerit, potest dici, quia voluntas defuncti vel in hoc servanda est, utique si probabilem modum faciendi monumenti sumptus, vel quantum testator iusserit, non excedat, eum, cui aufertur hereditas, impensas ratione doli exceptione aut retenturum aut actione negotiorum gestorum repetiturum, veluti hereditario negotio gesto: quamvis enim stricto iure nulla teneantur actione heredes ad monumentum faciendum, tamen principali vel pontificali auctoritate compelluntur ad obsequium supremae voluntatis.
50 The 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.
51 Idem libro secundo responsorum. Heres furiosi substituto vel sequentis gradus cognato fructus medii temporis, quibus per curatorem furiosus locupletior factus videtur, praestabit: exceptis videlicet impensis, quae circa eandem substantiam tam necessarie quam utiliter factae sunt. sed et si quid circa furiosum necessarie fuerit expensum, et hoc excipiatur, nisi alia sufficiens substantia est furioso, ex qua sustentari potest. 1Fructuum post hereditatem petitam perceptorum usurae non praestantur: diversa ratio est eorum, qui ante actionem hereditatis illatam percepti hereditatem auxerunt.
51 The 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.
52 Hermogenianus libro secundo iuris epitomarum. Si possessor ex hereditate inhonestos habuerit quaestus, hos etiam restituere cogitur, ne honesta interpretatio non honesto quaestui lucrum possessori faciat.
52 Hermogenianus, 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.
53 Paulus libro decimo ad Sabinum. Non solum ad aes alienum hereditarium exsolvendum necessaria alienatio possessori est, sed et si impensae necessariae in rem hereditariam factae sunt a possessore, vel si mora periturae deterioresve futurae erant.
53 Paulus, 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.
54 Iulianus libro sexto digestorum. Ei, qui partes hereditarias vel totam a fisco mercatus fuerit, non est iniquum dari actionem, per quam universa bona persequatur, quemadmodum ei, cui ex Trebelliano senatus consulto hereditas restituta est, petitio hereditatis datur. 1Heres debitoris id quod defunctus pignori dederat quin hereditatem petendo consequi possit, dubium non est. 2Cum praedia urbana et rustica neglegentia possessorum peiora sint facta, veluti quia vineae pomaria horti extra consuetudinem patris familias defuncti culta sunt: litis aestimationem earum rerum, quanto peiores sint factae, possessores pati debent.
54 Julianus, 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.
55 Idem libro sexagensimo digestorum. Evicta hereditate bonae fidei possessor quod lege Aquilia exegisset non simplum, sed duplum restituet: lucrum enim ex eo, quod propter hereditatem acceperit, facere non debet.
55 The 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.
56 Africanus libro quarto quaestionum. Cum hereditas petita sit, eos fructus, quos possessor percepit, omnimodo restituendos, etsi petitor eos percepturus non fuerat.
56 Africanus, 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.
57 Neratius libro septimo membranarum. Cum idem eandem hereditatem adversus duos defendit et secundum alterum ex his iudicatum est, quaeri solet, utrum perinde ei hereditatem restitui oporteat, atque oporteret, si adversus alium defensa non esset: ut scilicet si mox et secundum alium fuerit iudicatum, absolvatur is cum quo actum est, quia neque possideat neque dolo malo fecerit, quo minus possideret quod iudicio revictus restituerit: an quia possit et secundum alium iudicari, non aliter restituere debeat quam si cautum ei fuerit, quod adversus alium eandem hereditatem defendit. sed melius est officio iudicis cautione vel satisdatione victo mederi, cum et res salva sit ei, qui in exsecutione tardior venit adversus priorem victorem.
57 Neratius, 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.
58 Scaevola libro tertio digestorum. Filius a patre emancipatus secundum condicionem testamenti matris adiit hereditatem, quam pater, antequam filium emanciparet, possedit fructusque ex ea possedit, sed erogationem in honorem filii cum esset senator fecit ex ea. quaesitum est, cum paratus sit pater restituere hereditatem habita ratione eorum quae in eum erogavit, an filius nihilo minus perseverans petere hereditatem doli mali exceptione summoveri possit. respondi, et si non exciperetur, satis per officium iudicis consuli.
58 Scævola, 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.