The Same, On the Edict, Book XX. There is ground for an action for the partition of land held in common where it is subject to a perpetual lease. It should be considered whether land under a perpetual lease can be divided into separate tracts; but, as a general rule, the judge ought to avoid making a division of this kind, otherwise the perpetual rent will become confused. 1Neratius says that where an arbiter, dividing an estate not subject to a perpetual lease into two parts, awards them to two persons, he can impose a servitude, just as if they were two separate tracts of land. 2Where parties have the right to bring the Publician Action in rem, they can also bring an action for the partition of common property. 3An action for the recovery of property by the owner of the same does not lie under certain circumstances; still, if there is just cause for retaining possession, an equitable action for the partition of common property can be brought; for instance, where property is held in possession on account of the payment of a debt which in reality is not due. 4There is no ground for this action among depredators, nor is there any where parties hold possession by sufferance or by stealth; for the reason that this possession is unjust, and while possession by sufferance is, in fact, lawful, it does not justify judicial proceedings. 5Julianus states that if one possessor makes a demand for partition, and the other alleges that he holds possession by force, this action should not be granted, not even after a year has elapsed; because it is settled that, even after a year, an interdict will be granted against the one who forcibly ejected the other. He also says that where the party who instituted proceedings is said to be in possession by sufferance, this action will not lie, because an interdict is also granted in an instance of this kind. Moreover, if the plaintiff is said to hold possession by stealth, it must be held that this action will not lie; for, he adds, an interdict can likewise be obtained in a case of possession by stealth. 6Where there are two persons who have received property in pledge, it is perfectly just that they should be granted an equitable action for partition. 7Moreover, if a controversy arises between two parties with reference to an usufruct, this action should be granted. 8Again, if two parties are placed in possession by order of the Prætor for the preservation of legacies, there is good ground for possession on account of the custody; and hence, where there are two unborn children, the same rule will apply, and this is reasonable. 9It is evident that where anyone who was placed in possession for the prevention of threatened injury has already been ordered to take possession, he would not be entitled to an equitable action for his own benefit, as he has a right to bring an action for recovery. 10Where an action for the division of a common usufruct is brought, the judge must discharge his duty either so as to permit each one to enjoy the usufruct in different parts, or he can lease the usufruct to one of them, or to a third person; so that in this way they may collect the rents without any further disagreement; or if the property is movable, he can contrive to make the parties agree among themselves, and give security to one another for use and enjoyment for a certain time, that is to say that the usufruct shall belong to them alternately, each one having for it a special term. 11Neither tenants, nor persons who have received property on deposit are entitled to this action, although they may hold possession in accordance with natural law. 12Where parties have accepted a pledge in common, a division should be made between them in such a way that a share shall not be appraised at its true value, but only at so much as the indebtedness on that particular share amounts to; and the pledge should be assigned to one of the creditors, but permission shall not be refused to the debtor to tender the amount which he owes and redeem his pledge. The same rule applies where the possessor of a pledge brings an action in rem for redemption, and the party in possession tenders him the amount assessed by the Court. 13Where a debtor has pledged his share of a tract of land owned in common, and his creditor is sued by the owner of the other share, or by another creditor of another debtor, and he makes a higher bid for the property in question, and the debtor of the party to whom the property was adjudged wishes to recover his share of the land after paying what he himself owed; it is very properly held that he should not be heard, unless he is prepared to also recover what his creditor purchased under the adjudication. For, if you should sell a share of the property, and, before you have delivered it to the purchaser, an action for partition is brought against you, and the other share also should be adjudged to you; it is stated in consequence that no action can be brought on the ground of purchase, unless the plaintiff was prepared to take the entire property, because this share accrues to the vendor through another; and the purchaser can also be sued on account of the sale to compel him to take all of it; and the only question to be considered is whether any fraud was committed by the vendor. Where, however, one share has been disposed of, and the vendor is defeated in the bidding, he will be liable in an action on purchase to refund the price. The same rule is observed in mandate and other cases of this kind.

Ulpianus, On the Edict, Book XX. Where one partner has entered into a stipulation with another with reference to a penalty, he cannot bring an action on partnership if the amount of the penalty was only equal to that of his interest.

Ulpianus, On the Edict, Book XX. It is apparent that if anyone prevents the materials from being piled up, he employs force to prevent the repairs from being made. 1If anyone, being able to transport the materials through another part of a field without causing any inconvenience to the owner of the land, transports them through some other part, it has been very properly decided that force can be employed to prevent him from doing so. 2There is no doubt that this interdict can not only be granted to the person himself who has been interfered with, but also to his successors. It will also be granted for and against a purchaser. 3If anyone has a servitude that was not legally imposed, but of which he has had the enjoyment for a long time, the fact that he has used it for an extended period will entitle him to employ this interdict. 4He who wishes to avail himself of this interdict should furnish security to his adversary against any injury which may be caused by his acts.

Ad Dig. 45,1,60Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 7.Ulpianus, On the Edict, Book XX. The same rule will apply if anyone stipulates for the delivery of a certain weight of oil at Capua, for an estimate should be made at the time when it can be claimed, which is as soon as a person can arrive at the place designated.

The Same, On the Edict, Book XX. Ad Dig. 45,1,72 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 253, Note 8; Bd. II, § 299, Note 7.Stipulations are not divided when they relate to things which are not susceptible of division; as, for example, rights of way of every description, the privilege of conducting water, and other servitudes. I think that the same rule will apply when anyone stipulates for the performance of some act, for instance, the delivery of land, the excavation of a ditch, the building of a house; or for certain services, or for anything else of this kind, as their division annuls the stipulation. Celsus, however, in the Thirty-Eighth Book of the Digest, says that it was the opinion of Tubero that where we stipulate for something to be done, and it is not done, a sum of money should be paid, and that even in this kind of a transaction the stipulation is divided; in accordance with which, Celsus says that it may be held that an action should be granted, dependent upon the circumstances of the case. 1When anyone stipulates as follows, “If the work is not completed before the Kalends of next March, do you promise to pay a sum of money equal to the value of the work?” the promise will not date from the day when the work was begun, but after the Kalends of March, because the person who makes the promise cannot be sued before the Kalends of March. 2It is clear that if anyone has stipulated to prop up a house, it will not be necessary to wait until the house falls down before bringing suit; nor, where a house is to be built, to wait until the time has passed in which it could be built; but as soon as the promisor is in default in building the house, then suit can be brought, as the time fixed for the performance of the obligation has elapsed.