The Same, Questions, Book IX. Where you and I held two tracts of land, the Titian and Seian Estates, in common, and in dividing the same it was agreed that the Titian Estate should belong to me, and the Seian to you, and we conveyed our respective shares to one another, and in doing so it was stated that each one should be allowed to conduct water through the land of the other; it was held that the servitude was properly established, especially if a stipulation was added to the contract. 1You conduct water through the land of several persons. No matter in what way the servitude was created, unless an agreement was entered into, or a stipulation made with reference to it, you cannot grant to any of the owners, or to any neighbors the right to draw water from channels, but where an agreement or a stipulation was entered into, it is usual for this to be granted; although no land can be the subject of a servitude in favor of itself, nor can the usufruct of a servitude be created.

Ad Dig. 12,6,38Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 129, Note 7; Bd. II, § 289, Note 26.Africanus, Questions, Book IX. Where two brothers were under the control of the same party and one of them borrowed money from the other and paid it to him after the death of their father, the question arose can it be recovered by an action? The answer was that there was no doubt that suit might be brought for the amount of the share to which the heir was entitled to inherit from his father; but with reference to the share which his brother was to inherit, he could bring suit only in case that much had come into the hands of the brother out of his own peculium; for the natural obligation which existed was held to have been removed by the very fact that his brother had obtained part of the former’s peculium, and therefore, if the peculium had been previously bequeathed to the son, that is to say, the same one who was indebted to his brother, a deduction of this amount could be made by the latter. This exactly coincides with the opinion approved of by Julianus, that if the party had owed anything to a stranger and it had been collected from him after the death of his father; he would be entitled to a right of action for partition of the estate, in order to recover the amount from his co-heir to the extent that the creditor would have been able to collect from them by an action De peculio. Therefore, where proceedings are instituted in an action for partition of the estate, it is only just for the peculium to be divided, so that the party shall be indemnified by his co-heir with reference to a certain portion of it; and hence, as he could defend himself against a stranger, much more should he be indemnified against what he owed his brother. 1The question has been asked whether, where a father lends money to his son and the latter pays it after being emancipated, he can bring an action for the recovery of the same? The answer was that if no part of the peculium remains in the possession of the father, an action cannot be brought by the son, and what proves that the natural obligation still exists is that if a stranger brought an action De peculio within a year, the father could deduct what the son owed him. 2On the other hand, where a father owed money to his son and paid the latter after he has been emancipated, he cannot recover it; for it is proved by the same argument that the natural obligation still exists in this instance, because if a stranger should bring an action De peculio within a year, the peculium would be held to include what the father owes him. The same rule applies where a foreign heir pays a disinherited son what his father owed him. 3I received security for a legacy, when the surety paid me it appeared that I had no right to the legacy; and it was held that the surety could recover the money by an action.

The Same, Questions, Book IX. Although the words, “Render his accounts,” have no other signification than to pay the balance which was due, still, if less than is due is paid by a slave who is to be free under a certain condition, through the fault of the heir, and not on account of any fraud committed by the slave, and he is considered to have rendered his accounts in good faith, he will become free; and, unless this rule is observed, no slave who is manumitted under a condition would ever obtain his freedom, if, through want of knowledge, he should pay less than he ought to have paid. This must be understood to refer to cases where a slave is ordered to render his accounts, and, through some mistake but without fraudulent intent, he does so in such a way that his master may also be mistaken with reference to his calculation.

Ad Dig. 39,1,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 198, Note 16.Africanus, Questions, Book XIX. Where suit is brought to prevent a house from being raised to a greater height by a neighbor, before any work has been performed, and the case is not defended by the said neighbor, it has been held to be the duty of the judge that nothing else shall be done before the party, against whom the action has been brought, shall be ordered to give security that he will not proceed with his building, before establishing his right to raise it higher. On the other hand, the same rule will apply when anyone brings an action, claiming that he has a right to build his house higher against his adversary’s consent, and, in like manner, no defence is made; for it is held to be the duty of the judge to order the adversary to give security that he will not notify him to discontinue the new work, nor employ violence against him to prevent him from building. In this case, also, he who does not defend the action is punished by requiring him to prove his right, for this is, in fact, to take the part of the plaintiff.

Africanus, Questions, Book IX. I demanded that you give me a bond of indemnity against threatened injury and you refused to do so. Before I applied to the Prætor, your building fell down and caused me damage. It. was held that the Prætor should not render any decision in this case, and that I suffered the damage through my own Tault, because I began to institute proceedings too late. If, however, the Prætor decided that you should furnish me security, and you did not do so, and he then ordered me to take possession, and your building should collapse before I arrived, it was held that the same rule should be observed as if the injury had been sustained after I had come into possession of the property. 1Having been placed in possession of property on the ground of threatened injury, I obtained the ownership of the same through possession under the second decree of the Prætor. A creditor afterwards desired to prosecute his claim to the house which was hypothecated to him. It was held, and not without reason, that if I had incurred some expense in repairing the house, and the creditor was not willing to reimburse me for the same, he would not be permitted to bring suit against me. Why then should not this right also be conceded to a purchaser, if he had bought a house which had been hypothecated? These two cases cannot justly be compared with one another, since he who purchased the house entered into the transaction voluntarily, and therefore he could and should have been more diligent, and should have compelled the vendor to furnish him with security; but this cannot be said of him who failed to furnish indemnity against threatened injury.

The Same, Questions, Book IX. When a release is given to a debtor as a donation mortis causa, and the donor recovers his health, he can collect the debt, even if the debtor has been released by lapse of time; for, by the release, the creditor has renounced his claim under the prior obligation, and it has been merged in the right to recover the donation.

The Same, Questions, Book IX. A testator appointed his son, who had not reached the age of puberty, his heir, and ordered that Stichus should be emancipated after he had rendered an account of the silver plate, which was in his care. This slave had stolen a portion of the silver plate, which he had divided with the guardian, and he gave the other part of it to the guardian who took an account of it. Advice having been asked as to whether Stichus was free, the reply was given that he was not. But, on the other hand, as it has been decided if a slave who is to be free under a certain condition is directed to pay a certain sum of money, and pays it to the guardian, or it is the guardian’s fault that the condition was not complied with, he will obtain his freedom; this must be understood to mean that all is done in good faith, and without any fraud on the part of the slave or the guardian, just as is observed in the alienation of the property of a ward. Therefore, if the slave should tender the money and the guardian should not be willing to accept it because his ward will be defrauded, the slave cannot obtain his freedom, unless he was not guilty of fraud. The same rule applies with reference to a curator. The question also arose, where the slave was ordered to render an account of the silver plate, in what way he should be understood to have complied with the condition; that is to say, if any vessels had been lost without his fault, and he delivered the remaining ones to the heir, in good faith, whether he would be entitled to his freedom. The answer was that he would be entitled to it, for it is sufficient if he rendered an honest and just account. In short, he is considered to have complied with the condition by rendering to the heir such an account as the careful head of a household would accept.

Africanus, Questions, Book IX. Where a person to whom a slave is bequeathed and who is charged to manumit him conceals himself, the slave is held to become the freedman of the deceased. The same rule will apply where not the legatee but the heir is charged with the execution of the trust. Where not all of them, but only some, are charged with its execution, it must also be said that the slave will become the freedman of the deceased. Moreover, an equitable action should be granted against those who have concealed themselves, and in favor of their co-heirs, by whom the value of their shares must be paid, or they can properly bring suit in partition against them.

Africanus, Questions, Book IX. If a slave who was ordered to pay a certain sum of money at the death of the heir should have enriched the estate by an amount equal to that which he was ordered to pay, for instance, if he had paid the creditors, or had furnished the slaves with food, it was held that he would immediately be entitled to his liberty. 1An heir, who sold a slave who was to become free on the payment of ten aurei, stated at the time when he sold him that the condition was that the said ten aurei should be paid to him and not to the purchaser. The question arose, to which of the two must the slave pay the money in order to obtain his freedom? The answer was that he must pay it to the heir. If, however, he had stated the condition to be that the slave should make payment to a stranger, the opinion was given that the agreement would be valid, because the slave is considered to pay the heir, if he pays someone else with the former’s consent.

Africanus, Questions, Book IX. You are in possession of the Titian Estate, and you and I have a lawsuit with reference to the ownership of the same. I allege that there is due to this estate a right of way through the Sempronian Estate, which belongs to you. If I bring suit to recover the right of way, it is held that you can avail yourself of an exception on the ground that the action pending for the ownership of the property ought not to be prejudged; that is to say, that I cannot show that I am entitled to the right of way before I have proved that the Titian Estate is mine.

Africanus, Questions, Book IX. I bring an action against you for half of a tract of land which you say is yours, and I wish, at the same time, to bring one in partition against you before the same judge. Again, if I allege that a tract of land of which you are in possession is mine, and I wish to recover the crops from you, the question arises whether an exception based on the principle that I ought not to bring a suit, the decision of which will prejudge the case which involves the ownership of all, or a part of the land in question, will operate as a bar, or should be denied. It is held that, in both instances, the Prætor should intervene, and not permit the plaintiff to institute proceedings of this kind, before the question of the ownership of the land has been determined.

Africanus, Questions, Book IX. I brought an action against you alleging that I had a right to raise my house ten feet higher, and lost it. I now bring one against you alleging that I Have a right to raise my house twenty feet higher. An exception on the ground of res judicata can undoubtedly be pleaded. If I again bring suit alleging that I have the right to raise my house still ten feet higher, an exception will operate as a bar; for since I could not raise it to a lower height, I certainly would not be entitled to raise it to a still higher one. 1Likewise, if having brought an action to recover a tract of land, and lost it, the plaintiff brings suit for an island which was formed in a river opposite said land, he will be barred by an exception.

Africanus, Questions, Book IX. If I sell the same property, separately, to two persons, the purchaser to whom it was first delivered will be the only one who will profit by the possession. For if I sell you anything, and afterwards purchase it from you, and then sell it to Titius, he will be entitled to the benefit of both your possession and mine, because you are obliged to give possession to me, and I am obliged to transfer it to him. 1I sold you a slave, and it was agreed between us that unless the price was paid by a certain date, the sale should be considered void. As this actually took place, the question arose what opinion should be given with reference to the additional time you held the slave. The answer was, that the same rule should be observed as in the case where the property is returned under a condition; for it is just as if you had sold me the slave a second time, and, when the vendor afterwards obtained possession of him, the time which preceded the sale was added to that during which the slave was held by the party by whom he was returned.