The Same, Epistles, Book III. The usufruct of certain land was conditionally bequeathed to Titius, you being charged with the same as heir, and you sold and delivered the said land to me after reserving the usufruct. I ask, if the condition was not fulfilled, or if it should be and the usufruct should terminate, to whom would it belong? The answer was, I understand, that your question has reference to the usufruct which was bequeathed; and therefore, if the condition on which the legacy was dependent was fulfilled, there is no doubt that the usufruct will belong to the legatee; and if, by any accident, it should be lost to him, it will revert to the ownership of the estate. Where, however, the condition is not fulfilled, the usufruct will belong to the heir, for all the rules which have relation to the heir are carried out, just as those that pertain to the loss of an usufruct are ordinarily observed. But, in a sale of this kind, what has been agreed upon between the purchaser and the vendor must be considered; so that if it is apparent that the usufruct was reserved on account of the legacy, even though the condition was not fulfilled, it should be restored by the vendor to the purchaser.

The Same, Epistles, Book III. Seius, having appointed his freedman his heir, charged him with a legacy to Mævius of the usufruct of a tract of land. The freedman died, leaving Mævius his heir. I ask if the son of Seius should demand prætorian possession of the estate of the freedman against Mævius, whether the share of the land which was due to him, after deducting the usufruct, shall be transferred to him; or whether all of it ought to be transferred, because he had obtained possession of the property which belonged to the freedman at the time of his death. The answer was, I think that the usufruct should be restored to its original condition; therefore it would be best to demand an arbiter, in order that, by his decision, the usufruct may be transferred in its entirety.

Javolenus, Epistles, Book III. A freedman who desired to transfer a tract of land to Seius for the purpose of defrauding his patron took the following course. Seius directed Titius to receive the land in such a way that an obligation of mandate was contracted between Seius and Titius. I ask whether after the death of the freedman, the patron will only be entitled to an action against Seius, who gave the mandate, or against Titius who holds the property, or whether he can proceed against either of them whom he may select. The answer was that the action will be granted against the person who obtained the donation, provided the property came into his hands, since the entire transaction which was carried on with his consent should be embraced in the decision rendered against him. It cannot be held that he should be forced to deliver property of which another has possession, as he can recover it by an action on mandate, so that he can either himself restore it to the patron, or he can compel him with whom he contracted the mandate to do so. But what shall we say if the party who intervened was in no way guilty of fraud? We entertain no doubt that an action cannot be brought against him. For he must not be considered guilty of fraud who did a favor for his friend, by which he made an acquisition for another than himself, through the fraudulent act of the freedman.