Papinianus, Questions, Book XXVIII. The same course should be pursued where, after the legacies are paid, some new or unexpected event transfers the estate to others; for example, where a posthumous child is born whom the heir did not know was in its mother’s womb, or where a son who was in the hands of the enemy and whom his father erroneously thought to be dead, returns; for the Emperor Titius Antoninus stated in a Rescript that a prætorian action should be granted to a posthumous son or to one to whom the estate had been awarded against the parties who had received legacies, because a possessor in good faith is liable for the amount by which he became more wealthy, and the risk of claims of this kind does not attach to a party who makes payment without being guilty of negligence.

The Same, Questions, Book XXVIII. If the vendor should notify the purchaser to institute proceedings under the Publician Action, or under the action which has been framed with reference to land subject to tax, and the purchaser has neglected to do this, his bad faith will only injure himself, and the stipulation will not become operative. This rule does not apply to the Servian Action, for although it is a real action, still, it deprives the party of the bare possession, and after the money has been paid to the vendor it will be disposed of; wherefore, the result is that the purchaser cannot bring it in his own name. 1Where anyone who is absent on public business brings suit to recover a tract of land, the possessor can avail himself of an equitable action in case of eviction. This principle also applies where a party who has been deprived of his property by a soldier brings suit, for the same equity demands that the action for restitution, in case of eviction, should be granted to the purchaser. 2If the second purchaser of a slave should appoint the vendor, who was himself the first purchaser, his attorney to conduct the case, and the slave was not given up, and a decision was rendered against him; whatever the said attorney may have paid on the judgment, just as if he was acting in his own behalf, cannot be recovered under the stipulation, but, for the reason that the loss resulting from eviction must be personally borne by the purchaser, who could recover nothing in an action on mandate, he can legally bring an action on sale for the recovery of the amount of damages assessed by the court. 3Where partition has been effected among co-heirs and the agent of one who is absent appears for him, and the principal of the latter ratifies his act; the same action will be granted against the principal, in case the land is evicted, which would have been granted against him who transacted his business while he was absent, and the plaintiff can recover the amount of his interest, that is to say, the amount by which the property was diminished or increased, based upon what it was worth at the time the partition was made, according as the land was rendered more or less valuable.

The Same, Questions, Book XXVIII. It is proper to generally state that, in a bona fide action, no guarantee which is contrary to good morals will be accepted.

Ad Dig. 24,3,40Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 506, Note 4.The Same, Questions, Book XXVIII. After the dowry was given and the marriage contracted, the father, with the consent of his daughter, stipulated that the dowry should be returned to him in case of divorce. If the condition of this stipulation was complied with, and the daughter should afterwards die without issue, the father would not be prevented from suing on the stipulation; but if he wished to do so during the lifetime of his daughter, he could be barred by an exception.

Papinianus, Questions, Book XXVIII. Even though the guardian may be reinstated in his former guardianship by the right of postliminium.

Papinianus, Questions, Book XXVIII. Even if the father should be willing to give security that no one will afterwards claim the legacy, the heir cannot be compelled to pay it to anyone else than to the son who it is entitled to, and can demand the same.

Papinianus, Questions, Book XXVIII. The condition of a legacy for the payment of which security had been furnished was fulfilled after the heir had been captured by the enemy. I denied that the sureties could be held liable during the meantime, for there was neither a right nor a person to whom the terms of the stipulation could be applied. 1The Emperor Marcus Antoninus stated in a Rescript addressed to Julius Balbus that a person by whom property left under a trust was claimed should give security when he took an appeal; or, if his adversary furnished security, he should be given possession of the property in dispute. It was very properly decided by the Emperor that security should be furnished, even after the appeal of the case brought under the trust. This should be done before the decision is rendered if the claimant is in default, for he should not lose his victory because of his delay. But why should the appellant not give security on account of the trust, if his adversary did so in order that he might be given possession, when the requirements of the Edict are different, was asked in a rescript? For security is not exacted of the legatee, as in the case of a loan, but vicarious possession is granted on account of safekeeping, and he who obtains the property is placed in possession of the same, either by the Prætor or the Governor. The Prætor permits possession to be taken of all the property belonging to the estate, for the sole purpose of observing the condition of the trust; the Emperor, however, does so on account of the property which is the subject of litigation, and requires securities from both parties; just as where a son, having obtained possession, cannot give security to place all his property in the bulk of the estate, and, for the reason that we refuse him any action, the condition of his furnishing security to his brothers is deferred in accordance with the rule of the Prætorian Court, as his brothers must restore anything which they may have obtained from the share of their brother, when he does bring his own property into the bulk of the estate. If, however, none of them can give security, it is established, for the purpose of convenience, that a good man shall be chosen by both sides with whom the income shall be deposited, and, as it were, sequestrated, and who can bring the equitable actions granted by the Prætor. Moreover, possession under the terms of the Rescript previously cited is only transferred to the person who claims the benefit of the trust, where he gives security; even though his adversary may refuse to give it, not through inability to do so, but through obstinacy. But when the person who is successful cannot furnish security, the property itself must be deposited, or possession be given by a decree of the Prætor. 2Where the term or the condition of a legacy or a trust is said to postpone the demand, or the action for the same, and therefore security is demanded, and the heir alleges that this is done for the purpose of annoyance, and denies that anything has been left to the parties who make the application, he who asked that security should be furnished shall not be heard, unless he produces the will by which he can prove that the legacy was bequeathed to him. 3When the question was asked where security must be given for the purpose of preserving a trust, the Emperor, Titus Antoninus, stated in a Rescript that if the heir did not have his domicile at Rome, and all the property of the estate was situated in a province, the beneficiary of the trust who demanded that security be given should be sent back to the province. Hence, if the heir should ask to be sent back to his home for the purpose of giving security, and the legatee asks that security be given where the estate is situated, the heir should not be sent back. This was also stated by the Emperor Titus Antoninus in a Rescript. 4It was added in this Rescript that, where property belonging to the estate had already been sold, either by the will of the testator or with the consent of the legatee, the price of said property should be placed upon deposit for the purpose of carrying out the provisions of the trust.

Papinianus, Questions, Book XXVIII. It is evident that it is but just that another bond should be given where some new reason is alleged for doing so; as, for instance, if the surety should die, or should lose his property by some unexpected misfortune.

The Same, Questions, Book XXVIII. “Do you promise to deliver Stichus or Pamphilus, whichever one I may desire?” One of the slaves being dead, the survivor alone can be claimed, unless there was delay in delivering the one who died, and whom the plaintiff had chosen; for then he alone who died should have been delivered, as if he had been the only one included in the obligation. 1Ad Dig. 46,3,95,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 255, Noten 5, 14.When the promisor was entitled to make the choice, and one of the slaves should die, the survivor alone can be demanded. If, however, one of them should die by the act of the debtor, as he had the right of selection, although, in the meantime, he only can be demanded who can be delivered, the debtor cannot tender the estimated value of the one who is dead, if he should happen to be much less valuable than the other; for the reason that this rule has been established for the benefit of the claimant, and to punish the promisor. Still, if the other slave should afterwards die without the fault of the debtor, an action can, under no circumstances, be brought by virtue of the stipulation; as the latter, at the time of his death, had not caused the stipulation to become operative. But, as fraud certainly should not remain unpunished, an action on this ground can, not unreasonably, be employed. The rule is otherwise, so far as the person of a surety is concerned, if he kills the slave who was promised; because he will be liable in an action under the stipulation, just as he would be if the debtor should die without leaving an heir. 2The acceptance of an estate sometimes merges an obligation by operation of law; for instance, where a creditor enters upon the estate of the debtor, as his heir, or, on the other hand, the debtor enters upon that of the creditor. It sometimes takes the place of payment if a creditor, who had lent money to a ward without the authority of his guardian, should become his heir; for he does not reserve from the estate merely the sum by which the ward profited, but the entire amount of the debt. It occasionally happens that an obligation which is void is confirmed by the acceptance of an estate; for if an heir who delivered the estate in accordance with the Trebellian Decree of the Senate becomes the heir of the beneficiary of the trust, or a woman who is surety for Titius becomes his heir, the civil obligation will begin to lose the benefit of the exception on account of the inheritance of the person who was liable by law, for it is not proper to come to the relief of a woman who assumes responsibility in her own name. 3The common statement that a surety who becomes the heir of a principal debtor is released from liability as surety is true when the obligation of the principal promisor is ascertained to be greater. For if the principal debtor was only liable, the surety will be released. On the other hand, it cannot be said that the obligation of the surety is not extinguished, if the debtor has a personal defence of his own; for if he lent money in good faith to a minor of twenty-five years of age, and he lost it, and the latter died within the time when he could have demanded complete restitution, leaving his surety his heir, it is difficult to hold that the right under the Prætorian Law by which the minor could obtain relief protects the obligation of the surety, which was the principal right, and to which the obligation of the surety was accessory, without taking into consideration the Prætorian Law. Therefore, the relief of restitution will be granted within the prescribed time to the surety who becomes the heir of the minor. 4A natural obligation is extinguished by operation of law, for instance, by the payment of money, as well as by a just agreement, or by an oath; because the bond of equity by which it is alone sustained is dissolved by the justice of the agreement, and therefore a surety given by a minor is said to be released for these reasons. 5The question arose whether anyone could stipulate as follows, “Do you promise to pay ten aurei to me, or to my son?” or as follows, “To me, or to my father?” A distinction can very properly be made in such cases, for when the son stipulates, the father is added only when the stipulation cannot be acquired for him; and, on the other hand, there is nothing to prevent the son from being added whenever the father stipulates, as where a father stipulates for his son, he is understood to stipulate for himself, when he does not do so expressly. In the case stated, it is clear that the son is added, not with reference to the obligation, but for the purpose of payment. 6I stipulate for an usufruct to be given to me, or to Titius. If Titius loses his civil rights, the power to pay him is not lost, because we can stipulate as follows: “Do you promise to pay me or Titius if his status changed?” 7When a lunatic or a ward is added, the money can properly be paid to his guardian or curator, if payment can legally be made to them also for the purpose of complying with a condition. This rule Labeo and Pegasus think should be adopted on account of its general convenience. It may be adopted, if the money was employed for the benefit of either the ward or the lunatic. This is also the case, where anyone is ordered to pay a master, and pays his slave in order that he may pay his master. But where he is ordered to pay a slave, and he pays his master, he is not understood to have complied with the condition, unless he pays him with the consent of the slave. The same opinion must be given with reference to payment, if Sempronius, having stipulated that ten aurei should be paid to him or to Stichus, the slave of Mævius, the debtor should pay the money to Mævius, the master of the slave. 8Where a creditor is in possession of the estate of his debtor which does not belong to him, and he obtains as much from it as would release the heir, if any other possessor of the estate were to pay him, it cannot be said that the sureties are released, for it must not be assumed that he from whom the estate has been evicted has paid the money. 9You have been guilty of fraud, in order to avoid being in possession of what you have taken from an estate belonging to another. If the possessor surrenders the property itself, or pays its appraised value in court, the transaction will be for your benefit, because the plaintiff has no further interest in the matter. If, however, you, having previously been sued, make payment on account of the fraud which you have committed, this will not, in any way, benefit the possessor of the property. 10If, by my order, you lend money to Titius, a contract of this kind resembles one made between a guardian and the debtor of his ward; and therefore, if the mandator is sued and has judgment rendered against him, reason suggests that the debtor will not be released, even though the money may have been paid, but the creditor must assign his rights of action against the debtor to the mandator, in order that the former may pay him. This has reference to the comparison which we have made with reference to the guardian and the debtor of his ward; for, as the guardian is liable to his ward for not having brought suit against his debtor, where suit is brought against one, the other will not be released; and if the guardian has judgment rendered against him, this fact will not benefit the debtor. Moreover, it is usually stated that a contrary action on guardianship should be brought against the ward, to compel the latter to assign his rights of action against the debtors. 11If the creditor should lose his case against the debtor, through his own fault, it is probable that he can obtain nothing from the mandator by the action on mandate, as he himself was to blame for not being able to assign his rights of action to the mandator. 12If it is agreed between the purchaser and the vendor before anything has been delivered by either of them, that the sale should be annulled, the surety who has been received will be released upon the dissolution of the contract.

Papinianus, Questions, Book XXVIII. When anyone stipulates that an act will be ratified, although not the same but another person, against whom no action can be brought if ratification should take place, is sued, it has been decided that the stipulation will take effect; for instance, where a surety or another of the joint-possessors, who is a partner, is made defendant.

Ad Dig. 50,17,77Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 95, Note 2.The Same, Questions, Book XXVIII. Lawful acts which are not dependent upon time or a condition, as, for instance, emancipation, release, the acceptance of an estate, the choice of a slave, the appointment of a guardian, are absolutely annulled by the addition of time, or a condition. Occasionally, however, the above-mentioned acts become tacitly operative under circumstances which, if openly stated, would render them void. For when anyone absolutely acknowledges the receipt of something which was promised him under a condition, his release will be considered valid if the condition of the obligation should be fulfilled; where, however, the condition of the release was expressly stated, the transaction will be of no force or effect.