Modestinus, Rules, Book V. I ask if anyone should sell a tract of land under the condition that all should be considered to be sold which he possessed within certain boundaries, and the vendor, nevertheless, well knew that he did not possess a certain part of said land, and did not notify the purchaser of the fact; would he be liable to an action on sale, since this general rule ought not to apply to those portions of the land which the party who sold them knew did not belong to him, and yet did not except them? Otherwise, the purchaser would be taken advantage of, who if he had known this, would perhaps not have purchased the property at all; or would have bought it at a lower price if he had been notified with reference to its true amount; as this point has been settled by the ancient authorities, with respect to a person who made an exception, in the following terms, “Any servitudes that are due, shall remain due.” For persons learned in the law gave it as their opinion that, if a vendor, knowing that servitudes were due to certain persons, did not notify the purchaser, he would be liable to an action on purchase; for this general exception does not refer to matters which the vendor was aware of, and which he could and should expressly except, but to things of which he was ignorant, and concerning which he could not notify the purchaser. Herennius Modestinus was of the opinion that if the vendor in the case stated did anything for the purpose of deceiving the purchaser, he could be sued in an action on purchase.

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

The Same, Opinions, Book V. Modestinus says that women accused of adultery cannot marry during the lifetime of their husbands, even before they have been convicted.

Modestinus, Opinions, Book V. Titia, a minor under twenty-five years of age, exchanged the fourth part of the estate of her mother, which she held in common with her brothers, and received a tract of land instead of her share, just as if a sale had taken place. This land, together with other property, she gave as dowry. I ask if complete restitution should be granted to her, and if she should receive her share of one-fourth of the estate; and should she return the land, what course must her husband pursue, or ought he to be content with the other property given by way of dowry? I also ask, if he should die, and her heirs, as her representatives, should bring suit for complete restitution, and some of them should demand a fourth part of the estate, and others the land, whether the husband would be compelled to return the land, and remain satisfied with the other property of the dowry as his profit. Modestinus answered that there is nothing in the case proposed to justify the husband being deprived of the dowry, but the woman of her heirs should have judgment rendered against them for the actual value of the land, and the appraisement of the same should be made with reference to what it was worth at the time it was given by way of dowry.

The Same, Opinions, Book V. If he who is alleged to have been the husband of a woman denies that the marriage was contracted, for the reason that he is ready to prove that she who claims to be his wife is a slave, he shall be compelled to support her children in the meantime; but if it should be established that she was a slave, he who was charged with their support will not be prejudiced on this account.

The Same, Opinions, Book V. Vendors furnished security against eviction to a purchaser to the extent of his interest, and they also specially promised that they would be responsible for all expenses which might be incurred by the purchaser, who was the stipulator, if the matter should come into court. After the death of the purchaser, one of the vendors brought suit, alleging that the price was due to him; and the heirs of the purchaser, who proved that the price had been paid, demanded, under the terms of the stipulation, that they should be reimbursed for the expenses incurred in defending the case. Modestinus gave it as his opinion that if the vendors promised to pay the expenses incurred in an action brought to determine the ownership of the property, such expenses could, by no means, be collected under the stipulation where one of the vendors sued to recover the price which had already been paid.