[ULPIANUS libro nono decimo ad edictum. ] §10.3.6.prSi quis putans sibi cum Titio fundum communem esse fructus perceperit uel sumptum fecerit, cum esset cum alio communis, agi poterit utili communi diuidundo iudicio.
[ULPIAN, from the nineteenth book on the Edict.] If anyone, thinking that a tract of land was common to himself and Titius, has gathered the fruits or incurred expenses, whereas it was common to someone else, he can sue by an analogous action for partition of common property.
§10.3.6.1Quare et si fundum Titius alienauerit, licet hic communi diuidundo iudicio locus non sit, quia a communione discessum est, utili tamen locum futurum, quod datur de praestationibus, quotiens communis esse desiit.
Therefore, even if Titius has alienated the land, although there is no room here for the direct action for partition of common property because the co-ownership has ceased, an analogous action will nevertheless be available, which is granted concerning mutual performances whenever co-ownership has ceased.
§10.3.6.2Siue autem locando fundum communem siue colendo de fundo communi quid socius consecutus sit, communi diuidundo iudicio tenebitur, et si quidem communi nomine id fecit, neque lucrum neque damnum sentire eum oportet, si uero non communi nomine, sed ut lucretur solus, magis esse oportet, ut damnum ad ipsum respiciat.
Furthermore, whether a co-owner has obtained anything from the common land by leasing it or by cultivating it, he will be liable under the action for partition of common property; and indeed, if he did this in the common name, he ought to feel neither gain nor loss; but if he did it not in the common name but so that he alone might profit, it is more proper that the loss should fall upon him.
hoc autem ideo praestat communi diuidundo iudicio, quia uidetur partem suam non potuisse expedite locare.
Moreover, he makes this good in the action for partition of common property because it seems that he could not have easily leased his own share.
ceterum non alias communi diuidundo iudicio locus erit, ut et Papinianus scribit, nisi id demum gessit, sine quo partem suam recte administrare non potuit: alioquin si potuit, habet negotiorum gestorum actionem eaque tenetur.
For the rest, as Papinian also writes, there will be no room for the action for partition of common property unless he did indeed perform that without which he could not properly manage his own share; otherwise, if he could have done so, he has the action for unauthorized management of affairs and is liable under it.
§10.3.6.3Si quid post acceptum communi diuidundo iudicium fuerit impensum, Nerua recte existimat etiam hoc uenire.
If any expense has been incurred after the action for partition of common property was accepted, Nerva rightly estimates that this also comes into the valuation.
§10.3.6.4Sed et partum uenire Sabinus et Atilicinus responderunt.
Sabinus and Atilicinus also answered that offspring also comes into the valuation.
§10.3.6.5Sed et accessionem et decessionem hoc iudicium accipere idem existimauerunt.
The same jurists also estimated that this action admits both increase and decrease.
§10.3.6.6Si quis in communem locum mortuum intulerit, an religiosum fecerit uidendum.
If anyone has brought a corpse into a common place, it must be considered whether he has made it a religious place.
et sane ius quidem inferendi in sepulchrum unicuique in solidum competit, locum autem purum alter non potest facere religiosum.
And indeed, the right of burying in a tomb belongs to each person in full, but one co-owner cannot make a secular place religious.
Trebatius autem et Labeo quamquam putant non esse locum religiosum factum, tamen putant in factum agendum.
Trebatius and Labeo, however, although they think that the place has not been made religious, nevertheless think that an action on the facts should be granted.
§10.3.6.7Si damni infecti in solidum pro aedibus caueris, Labeo ait communi diuidundo iudicium tibi non esse, cum necesse tibi non fuerit in solidum cauere, sed sufficere pro parte tua: quae sententia uera est.
If you have given security in full against threatened damage for a building, Labeo says that you do not have the action for partition of common property, since it was not necessary for you to give security in full, but it was sufficient to do so for your own share; which opinion is correct.
§10.3.6.8Si fundus communis nobis sit, sed pignori datus a me, uenit quidem in communi diuidundo iudicio, sed ius pignoris creditori manebit, etiamsi adiudicatus fuerit: nam et si pars socio tradita fuisset, integrum maneret.
If a tract of land is common to us, but has been given in pledge by me, it indeed comes into the action for partition of common property, but the right of pledge will remain for the creditor even if it has been adjudicated; for even if the share had been delivered to the co-owner, the right would remain unimpaired.
arbitrum autem communi diuidundo hoc minoris partem aestimare debere, quod ex pacto uendere eam rem creditor potest, Iulianus ait.
Julian says, however, that the arbiter of the partition of common property ought to estimate this share at a lower value for the reason that the creditor can sell the property according to the agreement.
§10.3.6.9Idem Iulianus scribit, si is, cum quo seruum communem habebam, partem suam mihi pignori dederit et communi diuidundo agere coeperit, pigneraticia exceptione eum summoueri debere: sed si exceptione usus non fuero, officium iudicis erit, ut, cum debitori totum hominem adiudicauerit, partis aestimatione eum condemnet, manere enim integrum ius pignoris: quod si adiudicauerit iudex mihi, tanti dumtaxat me condemnet, quanto pluris pignus sit quam pecunia credita, et debitorem a me iubeat liberari.
The same Julian writes that if he with whom I had a common slave has given his share to me in pledge and has begun to sue for partition of common property, he ought to be repelled by the pledge exception; but if I have not used the exception, it will be the office of the judge that, when he adjudicates the whole slave to the debtor, he should condemn him to pay the valuation of the share, for the right of pledge remains unimpaired; whereas if the judge adjudicates the slave to me, he should condemn me only for so much as the pledge is worth more than the credited money, and order the debtor to be released from me.
§10.3.6.10Officio iudicis etiam talis adiudicatio fieri potest, ut alteri fundum, alteri usum fructum adiudicet.
By the office of the judge, such an adjudication can also be made, that he adjudicates the land to one, and the usufruct to the other.
§10.3.6.11Cetera eadem sunt, quae in familiae erciscundae iudicio tractauimus.
Other matters are the same as those we have treated in the action for partition of an inheritance.
§10.3.6.12Urseius ait, cum in communi aedificio uicinus nuntiauit ne quid operis fieret, si unus ex sociis ex hac causa damnatus fuisset posse eam poenam a socio pro parte seruare: Iulianus autem recte notat ita demum hoc uerum esse, si interfuit aedium hoc fieri.
Urseius says that when, in a common building, a neighbor gave notice that no work should be done, if one of the co-owners was condemned on this account, he can recover part of that penalty from his co-owner; Julian, however, rightly notes that this is true only if it was to the interest of the building that this work should be done.