[IDEM libro quarto responsorum. ] §20.1.26.prFideiussor impetrauit a potestate, ut et ante quam solueret pignora ipse possideat quasi satisfacturus creditoribus, nec satisfecit: modo heres debitoris paratus est soluere creditoribus: quaero, an pignora fideiussor restituere cogendus sit.
[THE SAME, in his fourth book of Opinions.] A surety obtained a decree from the authority that he himself should possess the pledges even before he paid, as if he were about to satisfy the creditors, but he did not satisfy them; now the heir of the debtor is ready to pay the creditors: I ask whether the surety should be compelled to restore the pledges.
Modestinus respondit cogendum esse.
Modestinus answered that he should be compelled.
§20.1.26.1Pater Seio emancipato filio facile persuasit, ut, quia mutuam quantitatem acciperet a Septicio creditore, chirographum perscriberet sua manu filius eius, quod ipse impeditus esset scribere, sub commemoratione domus ad filium pertinentis pignori dandae: quaerebatur, an Seius inter cetera bona etiam hanc domum iure optimo possidere possit, cum patris se hereditate abstinuerit, nec metuiri ex hoc solo, quod mandante patre manu sua perscripsit instrumentum chirographi, cum neque consensum suum accommodauerat patri aut signo suo aut alia scriptura.
A father easily persuaded his emancipated son Seius to write out with his own hand a chirograph for a loan of money that the father was receiving from the creditor Septicius, because the father himself was prevented from writing, with a mention of the house belonging to the son being given as a pledge. The question was whether Seius, having abstained from his father’s inheritance, could possess this house as well by the best right among his other goods, and whether there was nothing to be feared from the sole fact that by order of his father he wrote out the instrument of chirograph with his own hand, since he had not accommodated his consent to his father either by his seal or by other writing.
Modestinus respondit: cum sua manu pignori domum suam futuram Seius scripserat, consensum ei obligationi dedisse manifestum est. §20.1.26.2Lucius Titius praedia et mancipia quae in praediis erant obligauit: heredes eius praediis inter se diuisis illis mancipiis defunctis alia substituerunt: creditor postea praedia cum mancipiis distraxit.
Modestinus answered: "Since Seius had written with his own hand that his house was to be pledged, it is manifest that he gave his consent to that obligation." Lucius Titius pledged certain lands and the slaves who were on those lands; his heirs, having divided the lands among themselves, substituted other slaves when those original slaves died; the creditor later sold the lands together with the slaves.
quaeritur, an ipsa mancipia, quae sunt modo in praediis constituta, hoc est in hypothecis, emptor uindicare recte possit.
It is asked whether the buyer can rightly claim (by vindicatio) the very slaves who are now established on the lands, that is, in the mortgaged properties.
Modestinus respondit, si neque pignerata sunt ipsa mancipia neque ex pigneratis ancillis nata, minime creditoribus obligata esse.
Modestinus answered that if the slaves themselves had neither been pledged nor born of pledged female slaves, they were by no means obligated to the creditors.