1Ad Dig. 10,3,1ROHGE, Bd. 14 (1875), Nr. 78, S. 237: Theilungsklage eines Theilhabers an einer Gelegenheitsgesellschaft.Paulus, On the Edict, Book XXIII. The action for the partition of property held in common is necessary because the action on partnership has reference rather to the personal transfers from one side to the other than to the division of common property. In short, an action for the partition of common property will not lie where the property is not held in common.

2Gaius, On the Provincial Edict, Book VII. Ad Dig. 10,3,2 pr.ROHGE, Bd. 14 (1875), Nr. 78, S. 237: Theilungsklage eines Theilhabers an einer Gelegenheitsgesellschaft.It makes no difference, however, whether property is held in common among different persons with partnership or without it; for in either instance an action for the partition of common property will lie. Common property exists with partnership where, for instance, parties jointly purchased the same thing; and it is common without partnership where, for example, the same property is bequeathed to them by will. 1With reference to the three double actions, namely; that for partition of an estate, that for the division of common property, and that for the establishment of boundaries, the question arises who is to be considered the plaintiff, because the position of all of them appears to be the same? The better opinion is, however, that he must be considered the plaintiff who instituted the proceedings in court.

3Ulpianus, On Sabinus, Book XXX. In an action for the partition of common property nothing is to be considered except the division of the property itself which is held in common; and where any damage is caused to, or committed against any of said property, or where loss is sustained by any of the joint-owners, or where anything derived from the common property came into his possession. 1Where the parties themselves have entered into an agreement with one another without fraud, the judge must cause it to be upheld in the first place in an action for the partition of an estate or in one for the division of common property.

4The Same, On the Edict, Book XIX. By means of this action a division is made of corporeal property of which we have ownership, but not of an estate. 1The question arises whether an action can be brought for the partition of common property in a well, and Mela says it can only be done where the soil in which it is dug is subject to joint ownership. 2This action is a bona fide one, and therefore if anything remains undivided, the division of all the rest will be valid, and an action in partition can be brought with reference to whatever is still undivided. 3Since the division of the property itself may be the subject of an action for the partition of common property, so, also, payments due and expenses which have been incurred may be recovered in this way, and therefore if anyone incurs expenses he can recover them; but where he does not bring an action against the other joint owner, but against the heir of the latter, Labeo very properly thinks that the expenses as well as the profits collected by the deceased may be included in the action. It is evident that the profits collected before the property became subject to joint ownership, or any expenses incurred before that time should not be included in a suit for the partition of common property. 4Julianus says with reference to this, that if we apply for an order of court for possession to prevent threatened injury; and, before we are ordered to take possession, I prop up the building, I cannot recover the expense of this by an action for the partition of common property.

5Julianus, On Urseius Ferox, Book II. But where the case was not defended, and we are ordered by the Prætor to take possession of the house, and by reason of this we have obtained the ownership of the same; it is the opinion of Proculus that I can, by an action for the partition of common property, recover a portion of the expense that I have incurred.

6Ulpianus, On the Edict, Book XIX. Where anyone believing that he owns land in common with Titius, gathers the crops or incurs expense, when, in fact, he owns said land jointly with another party; he can bring a prætorian action for the partition of said property. 1Wherefore, if Titius should sell his share in the land, even though in this instance there would be no ground for an action for the partition of common property, because the joint ownership has ceased to exist; there will still be ground for a prætorian action, which is granted with reference to payments when the property ceased to be held in common. 2Where, however, one joint-owner acquires any profit out of the common property either by leasing the same or by cultivating it, he will be liable to an action in partition; and if he did this in behalf of all the owners, he should either acquire the profit or sustain the loss; but if he did not act in their behalf but obtained the profit as an individual, there is much more reason that he should also be responsible for the loss. The reason why he must be held accountable for the profit in an action for the partition of common property is, because it is considered that he could not readily lease his own share. There will, however, be no ground for an action for the partition of common property, unless (as Papinianus says) the party only performed such acts as were absolutely necessary for properly administering his own share; but if he could have done otherwise, he has a right of action on the ground of business transacted, and is liable to the same action. 3Where any expenses are incurred after issue has been joined in an action for the partition of common property; Nerva properly holds that these are also included. 4Sabinus and Atilicinus are of the opinion that the offspring of a female slave is also included. 5The same writers think that this action likewise includes accessions and diminutions. 6Where a party inters a corpse in a burial-place held in common, it should be considered whether he renders said burial-place religious? In fact, each owner has an individual right of interment in a burial-place, but either of them alone cannot make a place that is free religious. Trebatius and Labeo, although they think that the place is not rendered religious, still hold that an action in factum can be brought. 7If you give security for the entire amount with reference to the prevention of threatened injury to a house, Labeo says that you will not be entitled to an action for the partition of common property, since you were not obliged to give security for the entire amount, but it was sufficient to have given it for your share; which opinion is correct. 8Where you and I have a tract of land in common but my share has been given in pledge, it will be included in action for the partition of common property, but the right of the creditor to what has been pledged will remain unimpaired, even though it should be made the subject of adjudication by the Court; for the security will remain unimpaired even if one joint-owner had conveyed his share to the other. Julianus says that the arbiter, in an action for the partition of common property, must appraise the share at so much less, because the creditor can sell that part of the property under the agreement. 9Julianus also says that if anyone with whom I own a slave in common pledges his share to me, and then begins an action for the partition of common property, he can be barred by an exception on the ground of pledge; but if I do not make use of this exception, it will be the duty of the Court after adjudging the entire slave to the debtor, to compel him to pay me the appraised amount of my share; since my right to the pledge remains unimpaired. If, however, the Court should adjudge the slave to me, then he can only compel me to pay whatever the pledge is worth over and above the money which was lent, and shall order that the debtor be released from liability to me. 10It is within the province of the judge to render such a decision that the land may be vested in one party, and an usufruct in the same in another. 11The other matters relating to this subject are the same that we have discussed with reference to the action for the partition of an estate. 12Urseius states that where a neighbor has given notice that no new work shall be performed on a building held in common, and one of the joint owners, on account of this, has judgment rendered against him, he can recover damages from his joint owner in proportion to his share; but Julianus very properly notes that this is true only where it was advantageous to the house that it should be done.

7The 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.

8Paulus, On the Edict, Book XXIII. Even though the entire number of parties who own property in common do not desire partition but only some of them, this action can be brought among them. 1If it is uncertain whether the Lex Falcidia is available, an action for partition can be brought between the legatee and the heir, or proceedings for recovery may be instituted, for a share the value of which is not ascertained. This likewise takes place where a peculium is bequeathed, because it is uncertain to what extent an indebtedness to the owner diminishes the peculium. 2The action for the partition of common property also includes the case where anyone depreciates the value of said property; for instance, by wounding a slave, or by corrupting his morals, or by cutting down trees on the land. 3Where a joint-owner pays on behalf of a slave more by way of reparation for damage than he should have done, the slave shall be appraised and he can recover his share. 4Moreover, where one joint-owner is sued in an action De peculio for the entire amount of the obligation and judgment is rendered against him, he will be entitled to an action in partition to enable him to recover a part of the peculium.

9Africanus, Questions, Book VII. But where one joint-owner, on account of a slave held in common, has judgment rendered against him in an action De peculio for the entire amount of the indebtedness, and the property belonging to said peculium is lost while in his hands; still, an equitable action in partition for a recovery of a portion of the money will lie; for otherwise it would be unjust if the whole matter should cause loss to be incurred by the party who defended the action; since there ought to be an equal risk imposed upon both owners with reference to property included in peculium. For where anyone undertakes the defence of a slave at the request of his owner, he will be repaid everything which he expended in good faith, even though the peculium should subsequently be lost. This is the case where no negligence has been committed by either party; since if an action De peculio is brought against the owner, and he is prepared to surrender to the plaintiff the property included in the peculium, it is held he should be heard if proper cause be shown, of course, if he did this without malicious or fraudulent intent.

10Paulus, On the Edict, Book XXIII. Again, although the action under the Lex Aquilia cannot be brought against an heir; still, in this action the heir must pay the joint-owner for any damage which the deceased caused to the common property on account of which any right of action arises under the Lex Aquilia. 1Where we have only a right of use which can neither be sold nor leased, let us consider how a division can be made in an action for the partition of common property. If, however, the Prætor should interpose and arrange matters in such a way that the Court may adjudge the use to one of the parties; it will not be held that the other, who accepts compensation, is not making use of the property, on the ground that he who appears to enjoy it is doing more than the other; because this results from the necessity of the case. 2In an action brought for the partition of common property the judge should appraise such property at its true value, and security should also be furnished against recovery by eviction.

11Gaius, On the Provincial Edict, Book VII. We should, by all means, bear in mind that if, after the destruction of the common property, he who is entitled to be paid something by reason of the common ownership desires to bring an action on this ground, he will be granted an equitable action in partition; for instance, where the plaintiff incurred certain expenses on the common property, or the joint-owner alone obtained some profit from it—as, for example, the labor of a slave, or money paid for the same—an account of all these things is taken in an action of this kind.

12Ulpianus, On the Edict, Book LXXI. Where a house or a wall is held in common, and it becomes necessary to rebuild it, or demolish it, or insert something into it; an action can be brought for the partition of common property, or we may institute proceedings under the Edict Uti possidetis.

13The Same, On the Edict, Book LXXV. Everything is included in an action for the partition of common property, unless something has been expressly excepted by common agreement to avoid its being included.

14Paulus, On Plautius, Book III. This action includes whatever has been done, or ought to have been done for the common benefit by a party who knew that he had a fellow-owner. 1Any expenses, however, which I incurred while I believed that the land was my own, and which, if suit is brought for the recovery of a part of the land I can, of course, retain by pleading the exception on the ground of fraud; it should be considered whether I can retain them on account of the justice of the action itself, if suit in partition should be brought against me. I think the better opinion is that I can do so, because the action for the partition of common property is a bona fide one, but this is only the case where suit is brought against me; still, if I should dispose of my share, nothing will remain from which I can retain the expenses. Let us consider if a purchaser from me can retain them, for if an action is brought to recover a share from him, can he retain the amount on the ground of the expense which I incurred, just as I myself could do? The better opinion is that, in this instance, the expenses can be retained, and since this is the case, it is most justly held that I should be granted an equitable action against my co-owner on account of said expenses, even though the joint ownership still continues to exist. The rule is different, however, where I spend money upon my own property, as it were, which really belongs to another, or is held in common; for, in this instance, I have only the right of retention because I do not wish to bind anyone to myself; where I think property belongs to Titius which in fact belongs to Mævius, or that it is owned by me in common with another party who in reality is not my co-owner, I do this to bind another party to me; and as an action on the ground of business transacted is granted me against someone whose affairs I have attended to thinking that they were those of another, so also in the instance under consideration. Therefore, if I were to sell the land to another, for the reason that the case was such that I should be entitled to an action, one on the ground of business transacted should be granted me (as Julianus also says). 2If it should be agreed that no partition whatever shall be made, it is perfectly evident that an agreement of this kind would have no force; but if it was agreed that none should be made within a certain time, and this enures to the benefit of the property itself, such an agreement will be valid. 3Where it is agreed between joint-owners that the community of ownership shall not be divided within a certain time, there is no doubt that a party who is bound by an agreement of this kind is at liberty to sell; and therefore a purchaser from anyone who brings an action for the division of common property will be barred by the same exception by which the vendor himself would have been barred. 4If a joint-owner makes an agreement not to bring suit for his share, the joint ownership is, to all intents and purposes, terminated.

15The Same, On Plautius, Book V. Where a joint-owner is sued with reference to a slave held in common, and judgment is rendered against him, he can bring a suit for partition even before he complies with the judgment; for, if a noxal action is brought against one he can immediately bring suit against his co-heir for the delivery of his share to him, giving security at the same time that, if he does not deliver the slave, he will return the share.

16The Same, On Plautius, Book VI. Where joint-owners dissolve their ownership, it is customary for security to be furnished with reference to any indebtedness which may exist, which is dependent upon a condition.

17Modestinus, Rules, Book IX. Where one of a number of joint-heirs purchases from a creditor a tract of land which had been given in pledge by the testator, he should not be sued by his co-heirs in an action for the partition of common property.

18Javolenus, Epistles, Book II. An arbiter cannot decide that land belonging to an estate shall be subject to a servitude attaching to land which is not a part of said estate; for the reason that the authority of a judge cannot extend beyond what is before the court.

19Ad Dig. 10,3,19Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 142, Note 4.Paulus, On Sabinus, Book VI. A tree which grows up on a boundary line and also a stone which extends over two tracts, so long as they are attached to the soil belong to both owners, according to the position they occupy over the land of each; and they will not be included in an action for the partition of common property. But as soon as the stone is removed, or the tree uprooted or cut down, it becomes common and undivided property, and will be included in action for the partition of such property; for what was formerly in separate parts is now merged. Wherefore, where two masses of any substance belonging to two owners are mixed together, the entire mass is common property, even though some portion of the substance, as it was in the first place, exists separately; and so, also, where a tree or a stone are separated from the soil, the rights of ownership are merged. 1An arbiter for the purpose of dividing common property should not be appointed with reference to a vestibule, which is common to two houses, where either of the parties are unwilling; because where anyone is compelled to bid for such a vestibule, he necessarily will sometimes be obliged to pay the value of the entire house, if it has no other entrance. 2Where a right of way through the same place belongs to two of us, and one has incurred some expense with reference to it; Pomponius says rather harshly that either an action for partition or one on partnership will lie; for how can joint ownership be understood to exist in something which the parties use separately? A suit should be brought on the ground of business transacted. 3The judge who presides in an action for the partition of common property as well as in one for the partition of an estate, where a slave has taken to flight, must direct the parties who are before him to bid, and should then adjudge the slave to him who bids the highest; and there will be no danger that the penalty prescribed by the Lex Fabia will be incurred on account of the decree of the Senate. 4A watercourse is said by Labeo not to be included in an action for the partition of common property; for it is either a part of the land—and hence should not be considered in the trial—or it is separated from the land but is divided either with reference to the quantity or the time when it is to be used. Sometimes, however, rights may be separated from the land and still not be divided either by quantity or by periods of use; as, for instance, where the party to whom they belonged left several heirs, and, when this happens, it is suitable that these things also should be included in an action for partition; for Pomponius says that he does not see why they should not be included in an action for the partition of common property as well as in that of the partition of an estate. Therefore, in instances of this kind, they are also included in an action for the division of common property, just as the aforesaid rights are divided either by quantity or by periods of time.

20Pomponius, On Sabinus, Book XIII. Where a person with whom you hold land in common does not answer in the case of an offence, and on this account the house is demolished, or the trees are cut down by order of the judge; damages can be recovered by you in an action for the partition of common property, for whatever is lost through the negligence of a joint-owner is included in this proceeding.

21Ulpianus, On Sabinus, Book XXX. It is greatly advantageous to all parties for a judge, in dividing tracts of land, to follow whatever is most beneficial, or what the litigants may prefer.

22Pomponius, On Sabinus, Book XXX. If I build a wall for my neighbor and myself with the understanding that I can recover the expense of the same from him in proportion to his share; or if I build the wall by way of donation, it will be common property.

23Ulpianus, On the Edict, Book XXXII. Where an agreement is made between you and your co-owner to the effect that you can take the crops in alternate years, and your co-owner does not permit you to gather them during your year; it should be considered whether an action based on the contract of leasing or one for the partition of common property will lie. The same question arises where a joint-owner who agreed that he should enjoy the crop every second year turns in cattle, and causes the crop for the next year, which his co-heir had a right to gather, to be ruined? I think that the better opinion is that an action for the partition of common property should be brought, rather than one on the contract of leasing (for how can a lease exist when there is no rent involved?) or a civil action should certainly be granted for uncertain damages.

24Julianus, Digest, Book VIII. Where a slave held in common acquires anything through the property of one of his owners, it will, nevertheless, be subject to joint ownership; but the party through whose property the acquisition was made can collect the amount by an action in partition, because it is in conformity with good faith that every one should have a prior lien on anything which a slave acquires by means of his property. 1If I intend to bring an action against you for the partition of common property, and you transfer your share to Titius for the purpose of changing the conditions of the trial; you will be liable to me in a prætorian action, because you acted in such a way as to avoid an action in partition being brought against you.

25The Same, Digest, Book XII. Where Stichus, a slave owned by you and me in common, has himself a sub-slave named Pamphilus, who is worth ten aurei, and an action De peculio is brought against me, and, having lost it, I pay ten aurei; then, even though Pamphilus should die afterwards, you will, nevertheless, be compelled to pay me five aurei in an action in partition or in one on partnership, because I have released you from a debt of that amount. Much more ought I to be entitled to recover this amount, if Stichus, after the death of Pamphilus, should acquire another sub-slave.

26Alfenus Verus, Digest, Book II. A slave owned in common, while in the hands of one of his owners, broke his leg while working; and the question arose what kind of an action the other owner could bring against him with whom the slave had been at the time? I answered that if the common property had been injured rather through negligence than through accident, he could recover whatever damages were assessed by an arbiter in an action for the partition of common property.

27Paulus, Epitomes of the Digest of Alfenus, Book III. A single joint-owner cannot legally put a slave owned in common to torture, except with respect to some matter in which all the parties were interested.

28Papinianus, Questions, Book VII. Sabinus says that no joint-owner can legally perform any act with reference to common property without the consent of the other, hence it is manifest that the right of prevention exists; and where parties are in the same position, it is established that he who objects has the advantage. But, although where property is in common, one joint-owner may be prevented from proceeding where a building is in course of erection, he cannot be compelled to remove it if the other failed to prevent him from constructing it when he could have done so; and, therefore, compensation for the damage can only be obtained by means of an action for the partition of common property. Where, however, he consented to the erection of the building, he will not be entitled to an action for damages; but if one party did something during the absence of his co-heir to the injury of the latter, he can then be forced to remove it.

29Paulus, Questions, Book II. Where anyone holds land in common with Titius, and, believing that he held it in common with Mævius, expends money thereon; it is very properly held that an action for the partition of common property will be sufficient for him; for this is the case if I know that the property is common but do not know who my co-heir is, as I am not transacting the business of my co-heir, but am managing my own property; and the action arises rather with reference to the property on which the money was expended, than on the person of the joint owner. In short, we hold that this action is the one under which a ward would be liable, in an application to the court to compel him to reimburse expenses. The case is different where a man thinks that he is spending money on his own property, while in fact it is held in common; and in this instance he will neither be entitled to an action in partition, nor will an equitable action be granted him; for anyone who knows that property is owned in common or belongs to another transacts his business with a view to render him liable to himself, even though he may be mistaken with reference to the person. 1Pomponius says that anyone of a number of joint-owners can demand a judge; but where anyone of the said joint-owners remains silent, an action for the division of common property may properly be brought against him.

30Scævola, Opinions, Book I. An action for the partition of common property may be properly brought either where neither party is in possession, or where one of the joint-owners is not in possession of the land.

31Paulus, Opinions, Book XV. Where two slaves were reserved out of an estate by the order of the Prætor for the purpose of serving certain minors, it was held that they were not divided, but remained the common property of all.