Ulpianus, On the Edict, Book XIX. This action has reference to rustic estates, even though buildings are situated between them; for it does not make much difference whether a party plants trees, or erects a building on the boundary line. 1A judge is permitted in the case of establishment of boundaries to decide the controversy as seems to him best where he cannot fix the boundaries; and if the judge, for the purpose of removing a doubt of ancient origin chooses to direct the boundaries to be established in a new direction, he can do so in this way, and order a sum of money to be paid by way of compensation.

Ulpianus, On the Edict, Book XIX. By means of the action for the partition of an estate the latter can be divided whether it is derived from a will or passes by intestacy, and whether the estate is granted by the Law of the Twelve Tables, or by some other law, or by a Decree of the Senate, or even by an Imperial Constitution. Generally speaking, an estate can be divided only between those after whose death an action to recover it can be brought. 1If a fourth of the estate is coming to anyone who was arrogated in accordance with the Constitution of the Divine Pius, then, because a party of this kind does not become either an heir or the possessor of the property, a prætorian action will be necessary for the partition of the estate. 2Moreover, if the peculium of the son of a family who is a soldier is in question, it can be forcibly asserted that an estate is created by the Imperial Constitutions, and therefore this action will be available. 3In an action for the partition of an estate, each of the heirs takes the part of both defendant and plaintiff. 4Again it cannot be doubted that an action for the partition of an estate can be maintained where only a few heirs out of many institute proceedings. 5Although claims are not considered in this action, nevertheless, if stipulations had been entered into with reference to the division of the same, so that it is settled that each party shall assign rights of action to the other and appoint him agent for the transaction of his business, the division shall be adhered to.

Ulpianus, On the Edict, Book XIX. Therefore everything except pecuniary claims are included in this proceeding. But if a pecuniary claim is bequeathed to one of several heirs, the said heir can obtain it by a suit for partition of the estate. 1Noxious drugs and poisons are embraced in this action; but the judge ought by no means to interfere in matters of this description, for it is his duty to perform the functions of a good and innocent man. He should act in the same manner with reference to books which it is improper to read (for instance, those treating of magic and similar subjects); all of these, however, should be immediately destroyed. 2Moreover, where anything has been acquired by peculation or sacrilege, or by violence, theft, or aggression, it shall not be divided. 3The judge should order the will to be placed in the hands of him who is heir to the greater portion of the estate, or to be deposited in a temple. Labeo says that where the estate is sold, a copy of the will should be deposited, and that the heir should furnish a copy, but he himself ought to keep the original will or deposit it in the temple.

Ulpianus, On the Edict, Book XIX. The settlement of the matter by submitting it to competition, so that the party who makes the highest bid shall be entitled to possession of the obligations, belonging to the estate, is not approved by either Pomponius, or by myself.

Ulpianus, On the Edict, Book XIX. Pomponius says that where accounts are bequeathed as a preferred legacy to one of several heirs, they must not be delivered to him before his co-heirs have taken copies of the same. For, he says, suppose a slave who is a steward was bequeathed, he should not be delivered until he has rendered his accounts. We should consider whether a bond ought not to be executed providing that whenever the accounts are required, or the said steward bequeathed, they shall be produced; as it is frequently necessary that the original accounts and the steward himself should be produced in court for the explanation of matters which subsequently arise and in which the knowledge of the steward is involved; and it is necessary that a bond should be furnished the co-heir in this matter by the heir aforesaid. 1Pomponius also states that pigeons which are accustomed to leave the pigeon-house are included in the action for the partition of an estate, because they are our property as long as they have the custom of returning to us; and therefore if anyone should seize them, we are entitled to an action for theft. The same rule applies to bees, because they are part of our property. 2Moreover, where one of our cattle is carried off by wild beasts, Pomponius thinks that if it escapes from said beasts it is to be included in the action for the partition of an estate; for he says it is the better opinion that, where anything is carried off by a wolf or any other wild beast, it does not cease to be ours so long as it is not devoured.

Ulpianus, On the Edict, Book XIX. Also real property which belongs to our patrimony as well as land held by perpetual lease, or such as relates merely to the surface. Property of which the deceased had possession in good faith, even although it belonged to another, likewise comes under this rule.

Ulpianus, On the Edict, Book XIX. And even after issue had been joined can, as Sabinus states, be included in an action for the partition of an estate, and be made the subject of adjudication. 1The same principle will apply where anything is given by a stranger to slaves forming a portion of the assets of an estate. 2Property bequeathed under a condition in the meantime belongs to the heirs, and is therefore included in the action for the partition of an estate, and can be made the subject of adjudication; subject of course, to the restrictions attaching to the same, so that if the condition is fulfilled it will be taken away from the party to whom it was adjudged; or, upon failure of the condition, it will revert to those charged with the bequest. The same rule applies in the case of a slave who is to be liberated on a condition, for in the meantime he belongs to the heirs, but when the condition has been fulfilled he obtains his freedom.

Ulpianus, On the Edict, Book XIX. But where the right of usucaption has begun to run before issue is joined in favor of a party who is not an heir, and is subsequently completed, this removes the property from the case. 1The question arises whether an usufruct is embraced in the action; as, for example, where an usufruct was reserved and the land left to others than the heir:

Ulpianus, On the Edict, Book XIX. I think that it is part of the duty of the judge that, if the heirs should wish to relinquish their common ownership of the usufruct, he should accede to their wishes after causing them to give security to one another. 1Julianus says that where a Court adjudges the land to one heir and the usufruct of the same to another, the usufruct does not become common property. 2An usufruct can be adjudged from a certain time, or until a certain time, or for alternate years. 3Land which a river adds by alluvium to an estate after issue is joined is also included in an action of this kind. 4Where, however, an act has been committed maliciously or negligently by one of the heirs whose effect is to diminish the value of the usufruct, Pomponius says that this likewise comes within the scope of the action; for everything which an heir maliciously or negligently does to the damage of the estate will be considered in all actions for partition of the same, provided always that he commits the act in the capacity of heir. Therefore, if one of the heirs deprived the testator of money during his lifetime, this will not be included in the action for partition of the estate, because he was not yet an heir; but where he acted as an heir, even though the party interested should be entitled to some other action, nevertheless, as Julianus states, he is liable to a suit for partition of the estate. 5Finally, he says that if any one of the heirs should destroy accounts belonging to the estate or falsify them, he will be liable under the Lex Aquilia for destroying the same, and he will also be liable to an action for partition of the estate. 6Moreover, where a slave who belongs to an estate steals the property of one of the heirs, Ofilius says that an action for partition of the estate will lie, as well as one for the partition of property held in common, but an action for theft cannot be brought; and hence if the heir brings an action for partition of the estate he will obtain a judgment by which the slave will be given to him, or the damages assessed, that is to say simple damages will be granted him.

Ulpianus, On the Edict, Book XIX. In accordance with these rules, Julianus says that where there are several heirs, and a slave is left to one of them, in general terms, with the right of selection, and the remaining heirs allege that Stichus has falsified the will or defaced it, and they make this statement in order to avoid a slave being chosen; and then, after he has been chosen an action is brought to recover him, they can, if they are sued, avail themselves of an exception on the ground of malicious fraud and subject the slave to torture. 1The question arises whether in an action for the partition of an estate the heirs have a right to use torture with reference to the death of the testator, or to that of his wife and children; and Pomponius very properly says that these things have no reference whatever to the division of the assets of the estate. 2He also says that where anyone provides by will that a slave shall be sold in order to be transported to a distance, it is the duty of the judge to see that the wishes of the deceased shall not be thwarted. But where the testator ordered that a monument should be erected, an action for the partition of an estate can be brought to compel this to be done. He suggests, however, that since it is to the interest of the heirs—as they will have a right in the monument—any one of them can institute proceedings in express terms to have a monument erected. 3Where one of the heirs incurs expenses in good faith, he can collect interest from a co-heir from the time of his default, in accordance with a Rescript of the Emperors Severus and Antoninus. 4Celsus also very appropriately adds that a co-heir, even if he does not make payment himself, nevertheless, is entitled to an action for partition of the estate to compel his co-heir to pay his share; as, otherwise, the creditor will not relinquish a certain piece of property unless he is paid in full. 5Where the son of a family was his father’s heir to a share of the estate and was sued by creditors for his peculium, he being prepared to pay all that was due, he can, by means of an exception on the ground of malicious fraud, compel the creditors to assign their rights of action to him; and he is, in addition, entitled to an action for the partition of an estate against his co-heirs. 6Where one of the heirs has paid a legacy to a party who is directed by the court to take possession for the purpose of preserving legacies; Papinianus thinks, and his opinion is correct, that he is entitled to an action for the partition of the estate against his co-heirs; because the legatee would not otherwise give up the possession which he had once obtained, it being equivalent to security, until the entire legacy was paid to him. 7Moreover, if anyone should pay a debt to Titius to avoid the sale of a pledge, Neratius states that he can institute proceedings for partition of the estate.

Ulpianus, On the Edict, Book XIX. Where a married daughter who was obliged to bring her dowry into the common fund, through an error of her co-heirs gave a bond that she would pay them in proportion to their shares whatever she recovered from her husband; Papinianus says that, notwithstanding this, the arbiter in the action for partition must decide that even if she herself should die while the marriage existed the dowry must be contributed; for ignorance of the co-heirs can not change the rules which govern legal proceedings. 1Where the son of a family has become liable to an obligation by order of his father, he must reserve the amount out of the assets to pay the debt; and, moreover, if he has expended money on property belonging to his father, the same rule will apply, and if the action is de peculio he will reserve the peculium for the same purpose; and this our Emperor stated in the Rescript. 2In addition to this, where the son of a family is appointed heir, he can reserve the dowry of his wife; nor is this unreasonable, since he must sustain the pecuniary burdens of matrimony. Therefore, he can retain the entire dowry, and must furnish security that he will defend his co-heirs who may be sued on the stipulation. The same rule applies where another party gave the dowry and entered into the stipulation. This is applicable not only to the dowry of his own wife, but also to that of his son’s wife, since this also has reference to the expenses of matrimony for which he is responsible: because he is required to be liable for the expenses of his son and daughter-in-law. Marcellus says that the son must retain the dowry, not only where it was given to his father but also where it was given to himself, as his son; to the extent that it was given to him as being included in his peculium, or where it was expended for the benefit of his father. 3Where a father divides his property among his sons without any writing, and distributes the burden of his debts among them in proportion to what they possess; Papinianus says that this should not be considered a simple gift, but rather a division of property under a last will. It is clear, he says, that if the creditors bring suit against said heirs in proportion to their shares in the estate, and one of them refuses to abide by what was agreed upon, an action can be brought against him on special grounds, alleging that they made an exchange under a certain agreement; of course if all the property was divided. 4The action for the partition of an estate cannot be brought more than once, unless proper cause is shown; because if any property is left undivided, an action can be brought for its distribution. 5Papinianus says that if one of the heirs is required to pay a debt without this being provided for by way of a legacy; then the heir will be forced to assume payment by the judge presiding in the action for partition of the estate, but not for a greater amount than three quarters of his share, so that he may have one quarter undiminished; and therefore he must provide security to protect his co-heirs. 6He also says that if a son is liable for expenses which he has incurred on account of a public office that his father consented for him to administer, and is then appointed heir to a share of the estate, he can reserve the amount which he owes, because this was one of his father’s debts; but where he administered any offices after the death of his father, the heirs of the latter will not be liable for any obligations incurred with reference to said offices. 7Neratius, however, gave it as his opinion that where a man who had several sons consented that one of them should undertake the office of the functionary who has charge of arranging and regulating public games, and, before he perform the duties of the office, his father should die, after having appointed all his sons his heirs; the question arises whether the said son could, by an action for partition of the estate recover what he had expended in the matter; and he answered he could not recover it by any action. This opinion is not accepted, and very justly, for the expense should be included in the action for partition of the estate. 8Papinianus also says that if a husband orders one of his heirs to assume the burden of paying the dowry, which is included in a stipulation, and his widow brings suit for her dowry against both heirs, the heir who was ordered to assume the burden must defend his coheir in the action. But where both heirs are charged with the payment of legacies instead of the dowry, and the widow elects to receive the dowry, the legacies are retained by said heirs, but this must not be for the benefit of the co-heir who is released from payment of the debt; that is to say, the co-heir who assumed the burden of the debt, should, by order of the court, obtain the legacy; and this is true unless the testator provided otherwise. 9He also says that where a slave who is to be liberated on a condition pays money out of his peculium to one of several co-heirs, for the purpose of fulfilling the condition, it will not be included in this action, and should not be subject to contribution.

Ulpianus, On the Edict, Book XIX. Moreover, Labeo says that if one of the heirs digs up any treasure which the testator left, he will be liable to an action for partition, just as if he had divided the treasure with a stranger who was aware of the fact. 1The judge in an action for the partition of an estate can adjudge the same property to several parties only where the right to have one thing was left to several persons; (or where, as Pomponius says, the necessity existed that the shares should be adjudged to several persons); or where the judge assigns a certain part of the property to each of the co-heirs; he can, however, adjudge the property to one heir after it has been bid for by all. 2Moreover, no one doubts that he can adjudge land that has been divided in accordance with the distribution which has already taken place. 3Again, when he makes these adjudications he can impose a servitude so as to make one tract which he assigned serve another; and if he absolutely adjudges a tract to one heir, he cannot, in assigning another, impose a servitude upon the first one. 4An action for the partition of an estate has reference to two matters; that is to say, the property, and delivery of the same, these being personal actions. 5Papinianus criticizes Marcellus for his opinion concerning property held by the enemy, because he does not think that transfers of property of this kind are included in the action for the partition of an estate. For how can there be any impediment to an action for the transfer of property when the very property itself is included,

Ulpianus, On the Edict, Book XIX. Where, however, property has ceased to be in existence, the question of transfer may still arise; and I agree with Papinianus. 1The action for partition applies to the possessors of the property of an estate, and also to a party to whom an estate has been restored in accordance with the Trebellian Decree of the Senate, and to other prætorian successors.

The 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.

Ulpianus, 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.

The Same, On the Edict, Book XIX. Where slaves who have been in the hands of the enemy return after the death of the testator, they increase the value of the estate, so far as the Falcidian Law is concerned.

Ulpianus, On the Edict, Book XIX. Where slaves who are in the hands of the enemy are ordered to be free, they will obtain their freedom, even though at the time that the will was executed, or when the testator died, they did not belong to the latter, but were in captivity.

Ulpianus, On the Edict, Book XIX. Pomponius discusses the following point. Wolves carried away some hogs from my shepherds; the tenant of an adjoining farm having pursued the wolves with strong and powerful dogs, which he kept for the protection of his flocks, took the hogs away from the wolves, or the dogs compelled them to abandon them. When my shepherd claimed the hogs, the question arose whether they had become the property of him who recovered them, or whether they were still mine; for they had been obtained by a certain kind of hunting. The opinion was advanced that, as where animals were captured on sea or land, and regained their natural freedom, they ceased to belong to those who took them, so, where marine or terrestrial animals deprive us of property, it ceases to be ours when the said animals have escaped beyond our pursuit. In fact, who can say that anything which a bird flying across my courtyard or my field carries away still belongs to me? If, therefore, it ceases to be mine, and is dropped from the mouth of the animal, it will belong to the first occupant; just as when a fish, a wild boar, or a bird, escapes from our control, and is taken by another, it becomes the property of the latter. Pomponius inclines to the opinion that the property continues to be ours, as long as it can be recovered; although what he states with reference to birds, fishes, and wild beasts is true. He also says that if anything is lost by shipwreck, it does not immediately cease to be ours, and that anyone who removes it will be liable for quadruple its value. And, indeed, it is better to hold that anything which is taken away by a wolf will continue to be ours as long as it can be recovered. Therefore, if it still remains ours, I think that an action on the ground of theft will lie. For if the tenant pursued the wolves, not with the intention of stealing the property (although he might have had such an intention), but admitting that he did not pursue them with this object in view, still, as he did not restore the hogs to my shepherd when he demanded them, he is held to have suppressed and concealed them; and therefore I think that he will be liable to an action on the ground of theft, as well as one to produce the property in court; and after this has been done, the hogs can be recovered from him.