[PAULUS libro secundo quaestionum. ] §10.2.36.prCum putarem te coheredem meum esse idque uerum non esset, egi tecum familiae erciscundae iudicio et a iudice inuicem adiudicationes et condemnationes factae sunt: quaero, rei ueritate cognita utrum condictio inuicem competat an uindicatio? et an aliud in eo qui heres est, aliud in eo qui heres non sit dicendum est? respondi: qui ex asse heres erat, si, cum putaret se Titium coheredem habere, acceperit cum eo familiae erciscundae iudicium et condemnationibus factis soluerit pecuniam, quoniam ex causa iudicati soluit, repetere non potest.
[PAULUS, from the second book of Questions.] When I thought that you were my co-heir and this was not true, I brought an action against you for the division of an inheritance (familiae erciscundae), and mutual adjudications and condemnations were made by the judge: I ask, now that the truth of the matter is known, whether a personal action for recovery (condictio) or a real action for recovery (uindicatio) lies mutually? And should one thing be said in the case of him who is an heir, and another in the case of him who is not an heir? I replied: He who was heir to the whole estate (ex asse), if, thinking that he had Titius as a co-heir, he entered into an action for the division of an inheritance with him and paid money after condemnations were made, cannot recover it, since he paid on the ground of a judgment.
sed tu uideris eo moueri, quod non est iudicium familiae erciscundae nisi inter coheredes acceptum: sed quamuis non sit iudicium, tamen sufficit ad impediendam repetitionem, quod quis se putat condemnatum.
But you seem to be moved by the fact that there is no action for the division of an inheritance unless it is entered into between co-heirs: yet, although it is not a valid action, it is nevertheless sufficient to prevent recovery that one thinks himself condemned.
quod si neuter eorum heres fuit, sed quasi heredes essent acceperint familiae erciscundae iudicium, de repetitione idem in utrisque dicendum est, quod diximus in altero.
But if neither of them was an heir, but they entered into an action for the division of an inheritance as if they were heirs, the same must be said of both regarding recovery as we have said of the one.
plane si sine iudice diuiserint res, etiam condicionem earum rerum, quae ei cesserunt, quem coheredem esse putauit qui fuit heres, competere dici potest: non enim transactum inter eos intellegitur, cum ille coheredem esse putauerit.
Clearly, if they divided the things without a judge, it can be said that even a personal action for recovery (condictio) of those things which passed to him whom the one who was heir thought to be a co-heir lies: for no compromise is understood to have been made between them, since he thought that the other was a co-heir.