Marcianus, Rules, Book III. Servitudes are either personal, as use and usufruct; or real, as the servitudes of rustic and urban estates.

Marcianus, Rules, Book III. Where the owner of two houses sells one, and states that it is to be subject to a servitude, but does not mention the servitude when he delivers it; he can bring an action on sale, or sue for recovery of an uncertain amount of damages in order to have the servitude imposed.

Marcianus, Rules, Book III. Where a son brings any property into hotchpot for his brother as if he were about to institute proceedings for the possession of the estate, and does not do so; Marcellus says in the Fifth Book of the Digest, that he is entitled to an action to recover it.

The Same, Rules, Book III. Where anyone is entitled to a perpetual exception, he has a right of action to recover anything paid by mistake; this, however, is not universally applicable, for where an exception is granted in behalf of the party against whom proceedings were instituted, he can bring suit to recover what he paid, as happens in the case of securities under the decree of the Senate; but where the exception is granted by way of grudge against the party to whom the money is due, whatever has been wrongfully paid cannot be recovered; for example, where a son under parental control borrows money against the Macedonian Decree of the Senate, and afterwards, having become his own master, pays it, he cannot bring an action to recover the same. 1Where a part of a house is left in trust from a certain day, and before the time when the trust vests, it burns, and the heir rebuilds it at his own expense, it is established that the expense of the same must be deducted from the amount included in the trust; and if the heir delivers the house without deducting the said expense, an action may be brought for the recovery of an uncertain amount on the ground that the heir paid more than was due. 2If a patron enters into an agreement with his freedman that suit shall not be brought against him for services, and anything should afterwards be paid by the freedman, suit may be brought to recover the same.

Ad Dig. 18,1,44ROHGE, Bd. 16 (1875), Nr. 44, S. 155: Mehrheit von Gegenständen. Mehrheit von Rechtsgeschäften.Marcianus, Rules, Book III. Where anyone buys two slaves at the same time for one and the same price, and one of them dies before the sale is concluded, the purchase of the one who survives is void.

Ad Dig. 19,5,25Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 421, Note 13.Marcianus, Rules, Book III. Where anyone furnishes the services of his slave, who is an artisan, to another, in exchange for those of a similar slave belonging to the latter, for the same length of time, proceedings can be instituted by an actio præscriptis verbis, just as in the case where a party gives cloaks in return for tunics. Nor is this inapplicable, if services which were not due should be rendered by mistake, as these cannot be recovered; for in giving one thing in return for another we contract an obligation under the Law of Nations, but where something is given which is not due, either restitution should be legally demanded, or an equal amount of the same thing should be returned, and by neither of these methods can the services above mentioned be recovered.

Marcianus, Rules, Book III. Whenever a husband returns property to his wife in a suit for the recovery of her dowry, he must surrender whatever he obtained in this way, not only where the land given as dowry was appraised, but also where it was not, because the land was included in the dowry; and likewise if she promised to pay double damages in case of eviction, even where she was not obliged to do so.

Marcianus, Rules, Book III. The action for property wrongfully appropriated is available where it was removed with the intention of obtaining a divorce, and the divorce actually followed; but if the wife appropriates the property of her husband during marriage, although this action will not lie, the husband can, nevertheless, bring a personal action to recover the said property; for, in accordance with the Law of Nations, I hold that property can always be recovered by a personal action from parties who hold possession of it unjustly.

Marcianus, Rules, Book III. Certain authorities held that the following appointment was not valid: “Let Stichus be free, and if he should become free, let him be my heir.” The Divine Marcus stated in a Rescript that this appointment is valid, just as if the addition, “If he should become free”, had not been made. 1Where anyone makes the following provisions in a will, namely: “If Stichus should still belong to me when I die, let him be free, and my heir.” If Stichus is alienated, he cannot enter upon the estate by order of the purchaser, although, even if the testator had not declared it to be his intention, the slave cannot become free and the heir, unless he was under his control at the time of his death. If, however, he should manumit him during his lifetime, Celsus says in the Fifteenth Book of the Digest that Stichus will become his heir; for it is evident that the testator did not intend to exclude this case, nor are his words at all contradictory, for even though he is no longer his slave, he certainly is his freedman.

Marcianus, Rules, Book I. If anyone should bequeath a legacy to Titius and Mævius, one of them will be permitted to accept the legacy without the other. For when the Prætor says, “I order that the unborn child, together with the other children, shall be placed in possession of the estate,” even though there are no other children, the unborn child will be placed in possession.

Ad Dig. 33,4,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 658, Note 4.Marcianus, Rules, Book III. Where a dowry has been bequeathed, the heir should not be heard, if he wishes to defer payment of it to the woman on account of donations which have been made to her by her husband, or because of other expenses than those which, by operation of law, diminish a dowry, for it is one thing for a dowry to be diminished by necessary expenses, and another where it is retained because of a pledge; since it is but just that the woman should contribute her share of the indebtedness for which it was given as security.

Marcianus, Rules, Book III. Where a certain kind of provisions is bequeathed, together with the vessels in which they are contained, and they have been consumed, the vessels are not included in the legacy, as in the case of the peculium.

The Same, Rules, Book III. When we consider the case of persons dying at the same time, as well as the discussion of other matters; for example, where a mother stipulated that the dowry of her daughter should be returned to her by the husband, if her daughter should die during marriage, and the mother died at the same time as her daughter, the question arises whether an action based on the stipulation would lie in favor of the heir of the mother. The Divine Pius stated in a Rescript that the stipulation would not allow such an action to be brought, because the mother did not survive the daughter. 1The question was also asked if a stranger who stipulated for the return of a dowry should die at the same time as the husband, or at the same time as the wife on whose account he entered into the stipulation, could he transfer the right of action to his heir?

Marcianus, Rules, Book III. In the following instance, where a minor and his brother, who was his necessary heir, and was substituted for him, died at the same time, the question arises whether the brother would be the heir to his brother or not. Moreover, where two necessary heirs have been substituted for one another, and they perished together, will both be considered as the heirs of the testator, or will one of them be the heir of the other, that is to say, if they had been asked to deliver the estate to one another at the time of their death? In cases of this kind, if they should die at the same time, and it does not appear which of them was the first to lose his life, one of them will not be considered to have survived the other. 1However, with reference to the Falcidian Law, if a master dies at the same time as his slaves, the latter will not be reckoned as forming part of his estate at the time of his death.

Modestinus, Rules, Book III. Where an unborn child is placed in possession of an estate, no legatee can be given possession of it to provide for the payment of the legacy.

Marcianus, Rules, Book III. It is very properly held that even the profits which have already been obtained are included in the Favian and Calvisian Actions, since it is the intention of the Prætor to annul every fraudulent act of a freedman.

The Same, Rules, Book III. The son of a deaf or dumb father can manumit a slave by his order. The son of an insane person, however, cannot do so.

Marcianus, Rules, Book III. Julianus says that if anyone buys a tract of land, a small part of which he knows to belong to another, and he was aware that the said small part has been divided; he can acquire the remainder of the land by prescription. If, however, the said part was undivided, he can also acquire the land by prescription, although he may not know where the part in question was situated; because what he thought belonged to the vendor passes by prescription to the purchaser, without any damage resulting. 1Pomponius, also, in the Fifth Book of Various Passages, says that if the purchaser knows, or thinks that the usufruct of the property belongs to another, he can still obtain the latter by long-continued possession. 2The same rule applies, as he says, if I purchase property which I know has been pledged.

Marcianus, Rules, Book III. When either a husband or a wife builds upon land which one of them has given to the other, it is the opinion of several authorities that they can hold the property by means of an exception on the ground of fraud.

Marcianus, Rules, Book III. Ad Dig. 46,3,46 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 342, Note 13.If anyone should give to his creditor with his consent, by way of payment, one kind of property instead of another, and it should be evicted, the former obligation will continue to exist. If the property should only partly be evicted, the obligation for the entire amount will still remain unimpaired, as the creditor would not have accepted it if there had been any doubt as to the title. 1Ad Dig. 46,3,46,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 342, Note 13.But even if, for example, he had given two tracts of land instead of paying his debt, and one of them was evicted, the obligation would remain unimpaired. Therefore, when one article is given in payment for another, a release from liability is effected, and it absolutely belongs to the person who receives it. 2But where anyone, through fraud, gives in payment a tract of land which is estimated at more than it is worth, he will not be released unless he makes up the deficiency.