The Same, Disputations, Book XI. Where a woman having a right of usufruct in land belonging to her husband gives to him by way of dowry, although the usufruct no longer is hers, still, the husband is not entitled to it, because he is using his own land, as owner; but, by means of the dowry, he obtains the complete title to said land, and does not hold it separate from the usufruct, and he cannot lose it by non-user. Still, in case of a divorce, he must reestablish the usufruct in said land for the benefit of his wife. If, however, she should die during marriage, the husband is held not to have profited by reason of the dowry, because even if he had not married the woman, the usufruct, having been terminated by her death, would revert to the land, and therefore he would not be compelled to contribute to the funeral expenses of his wife. 1It is evident that if a father, who has a usufruct in a tract of land, gives it to his son-in-law by way of dowry, for his daughter, and she dies during marriage, he will have a right of action against his son-in-law for the re-establishment of the usufruct. 2If a woman constitutes a dowry for her husband by giving him the usufruct in her land, then the usufruct will, properly speaking, be attached to the person of her husband, and he will lose it by non-user. If this should happen, let us see whether the woman will still be endowed. If, indeed, the ownership of the land is in the woman, and the usufruct reverts to the same, nothing now remains of the dowry which can be recovered by him in an action on dowry, because he cannot be blamed for having lost the usufruct by non-user, since she herself has profited by it, and hence she will remain without a dowry. But if the wife should alienate the property, and it should become more valuable without any advantage to her, she will still retain the right to her dowry, because the husband, who, when he could have enjoyed the usufruct, lost it by non-user, will be liable to an action on dowry. If, however, the usufruct continued to exist until the divorce took place, its restitution will be for the benefit of the woman, because although it does not immediately pass to her, still, it reverts to the property either for some price or consideration, and without any disadvantage to the owner. But where the husband did not lose the usufruct, his right to it will not be extinguished by the death of the wife. But where a divorce takes place, let us see, in the first and second instances, whether the profits should be divided in proportion to the time of the year which has elapsed. This opinion should be adopted. The restitution of the usufruct, however, ought to be made so that it will be transferred to the woman who owns the land, and be united with the ownership of the same. Even if the woman is not the owner of the land, an action on dowry will, nevertheless, lie to compel the husband to relinquish the usufruct; for the wife will be liable to an action on sale to compel her to deliver it, whether she expects to obtain a certain price for it from the purchaser, or prefers to do him a favor, rather than leave the right with someone who is unfriendly to her, and to whom it has been transferred; which she is allowed to do by law. 3A wife gave an usufruct to her husband by way of dowry, and during the marriage she sold him the tract of land. The question arose what she would be entitled to recover in an action on dowry, if a divorce took place. I replied that it was important to inquire how much the land had been sold for; as, if an appraisement of the mere property was made, the woman, in an action on dowry, was entitled to recover the price of the usufruct. But what if the husband should die before issue was joined? His heirs would not be liable for anything. For even if anyone else appeared as purchaser of the property, the heir of the husband would be liable to the woman for nothing, and the usufruct would revert to the land. If, however, the whole tract was sold for as much as it was worth, and the usufruct was not understood to have been reserved, it would be held that the woman was entitled to the dowry during the existence of the marriage. 4Where a tract of land held in common was given by way of dowry, and the other joint-owner brought an action against the husband for partition, and the land was adjudged to him, the amount of the judgment against the joint-owner in favor of the husband would be the dowry, but if the land was adjudged to a stranger without any bidding, the dowry would be a part of the price for which the land was sold. But this would not be considered to take the place of the property, and, in case of a divorce, it would not be necessary to pay it all at once, but it should be paid within a specified time. If, however, the land should be adjudged to the husband, that portion of it which had been given by way of dowry, would still remain dotal; but if a divorce took place, the other portion, on account of which the first, as dowry, came into the hands of the husband, must be returned; that is to say, he will receive as much, by way of price, from his wife as he had paid to her joint-owner on account of the judgment which was rendered against him. If either of the parties should attack this as being unjust, neither should be heard, not the woman if she objects to receiving the other part of the land, nor the husband if he refuses to surrender it; but let us see whether, as long as the marriage is in existence, only that portion of the land which was given by way of dowry is dotal, or whether the other portion is not so likewise. Julianus says that only one of the portions is dotal, and I stated in court that only one of them should be considered such. 5Where anyone who is protected by an exception binds himself, through mistake, in a stipulation with a husband to pay him a sum of money by way of dowry, and does not do so, he can be compelled to pay him; and he will be entitled to a personal action for recovery against the woman or her father, dependent upon which of them substituted him on account of the amount which he did not owe, and which he either promised, or paid to the husband.

Ad Dig. 23,5,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 171, Note 2.Tryphoninus, Disputations, Book XI. Where a woman gave her husband, by way of dowry, a tract of land of which Titius had possession in good faith, and had a right to claim for himself on the ground of prescription, and her husband neglected to bring suit for said land when he could have done so, he will be responsible. For although the Lex Julia, which forbids dotal land to be alienated, also has reference to an acquisition of this description, it does not, however, interrupt possession which has existed for a long time, if this had already begun before the land was rendered dotal. It is evident that if a very few days are lacking to establish the prescriptive right, the husband will not be at all to blame.

Tryphoninus, Disputations, Book XI. The valuation of property wrongfully appropriated should be calculated with reference to the time when it was taken, for the woman is in reality guilty of theft, although she is punished with more leniency. For this reason property thus wrongfully appropriated cannot be acquired through usucaption by a bona fide possessor; but where it increases in value and is not returned, the appraisement will also be increased; as is the case in an action for the recovery of stolen property.