Papinianus, Questions, Book XXVI. A creditor received certain lands by way of pledge, and afterwards another creditor lent the same debtor money, and entered into an agreement by which the entire property of the debtor was pledged; then the first one made the latter execute a similar obligation with reference to all his property to secure either another, or the same contract. Before the second creditor was paid, the first one sold the other property on the ground of its having been pledged, without having any right to do so; and on this account a personal action would not lie against the debtor in favor of the creditor, nor could an equitable action be granted him to recover his pledges. Nor could he properly be sued in an action of theft, with reference to the personal effects, because the creditor, in instituting proceedings, acted in his own behalf, being mistaken with respect to the order which should be observed in the sale of the article; especially as the other creditor did not lose, by theft, the possession of property which was never in his hands. The second creditor cannot institute proceedings for production, because the first is not in possession, and did not act fraudulently in order to avoid being in possession. It follows, then, that the second creditor must sue those in possession of the property.

Ad Dig. 41,2,47Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 157, Note 6.The Same, Questions, Book XXVI. If you decide not to return movable property which has been deposited with you, or of which you have been given possession as a loan, it has been held that the other party will lose possession immediately, even if he is not aware of your intention. The reason for this is, that where the care of movable property is neglected, or abandoned, even though no one else appropriates it, the former possession is usually prejudiced. This was stated by Nerva, the son, in his Books on Usucaption. He also says that the case is different, if proper care was not used, where a slave had been lent; for possession of him only will continue as long as no one else seizes him, that is to say, because a slave can retain possession for his master if he has the intention of returning to him; and we can likewise obtain possession of other property by his agency. Therefore, possession of such objects as are destitute of reason, or life, is immediately lost, but that of slaves is retained, if they have the intention of returning.

Papinianus, Questions, Book XXVI. If a husband returns a pledge given him by his wife, or a wife returns one given to her by her husband, the better opinion is that of those who think that no donation was made. There is, however, no doubt if this was done for the purpose of defrauding creditors that the transfer can be set aside by a prætorian action. The same rule applies where anyone relinquishes a pledge for the purpose of defrauding the creditors of his debtor.

Ad Dig. 43,16,18Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 400, Note 7.Papinianus, Questions, Book XXVI. Ad Dig. 43,16,18 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 157, Note 6.If anyone sells a tract of land which he has leased, and directs the purchaser to take possession of the same, and the tenant prevents him from doing so, and the purchaser afterwards forcibly expels the tenant, the question arises, who will be entitled to the interdict Unde vi? It was established that the tenant would be liable to the interdict in favor of the vendor; because it made no difference whether he himself, or another who was sent by him, had prevented him from taking possession. For possession can not be held to have been lost before the property has been delivered to the purchaser, because no one has the intention of losing possession in favor of a purchaser, before the latter himself has obtained it. The purchaser, also, who afterwards employed force, would himself be liable to the interdict in favor of the tenant; for it was not from him, but from the vendor, who had himself been deprived of it, that forcible possession of the land had been acquired. The question arose whether relief should be granted to the purchaser, if he had afterwards forcibly expelled the tenant, with the consent of the vendor. I gave it as my opinion that he was not entitled to relief, because he had undertaken the execution by an unlawful mandate. 1Where anyone brings suit to recover land against a person who is liable under the interdict Unde vi, it has been decided that, while the case is pending, proceedings based upon the interdict can be legally conducted.