[IDEM libro uicesimo quaestionum. ] §20.1.3.prSi superatus sit debitor, qui rem suam uindicabat, quod suam non probaret, aeque seruanda erit creditori actio Seruiana probanti res in bonis eo tempore, quo pignus contrahebatur, illius fuisse.
[THE SAME, in the twentieth book of Questions.] Even if a debtor, who was claiming his own property, should be defeated because he did not prove it was his, equally there must be preserved for the creditor the Servian action, if he proves that the property had been in the assets of the debtor at the time when the pledge was contracted.
sed et si uictus sit debitor uindicans hereditatem, iudex actionis Seruianae neglecta de hereditate dicta sententia pignoris causam inspicere debebit.
But even if a debtor claiming an inheritance has been defeated, the judge of the Servian action, disregarding the judgment pronounced concerning the inheritance, will have to examine the cause of the pledge.
atquin aliud in legatis et libertatibus dictum est, cum secundum eum, qui legitimam hereditatem uindicabat, sententia dicta est.
Yet a different rule has been stated in the case of legacies and manumissions, when judgment has been pronounced in favor of the person who was claiming the intestate inheritance.
sed creditor non bene legatariis per omnia comparatur, cum legata quidem aliter ualere non possunt, quam si testamentum ratum esse constaret: enimuero fieri potest, ut et pignus recte sit acceptum nec tamen ab eo lis bene instituta.
But a creditor is not properly compared in all respects to legatees, since legacies indeed cannot otherwise be valid than if it is established that the will is valid; indeed, it can happen both that the pledge was properly accepted and yet that the lawsuit was not well instituted by him.
§20.1.3.1Per iniuriam uictus apud iudicium rem quam petierat postea pignori obligauit: non plus habere creditor potest, quam habet qui pignus dedit.
A person who was unjustly defeated in court afterwards bound as a pledge the property which he had claimed: the creditor cannot have more right than he has who gave the pledge.
ergo summouebitur rei iudicatae exceptione, tametsi maxime nullam propriam qui uicit actionem exercere possit: non enim quid ille non habuit, sed quid in ea re quae pignori data est debitor habuerit, considerandum est.
Therefore, he will be barred by the exception of res judicata, even if the person who won is utterly unable to exercise any action of his own: for it is not what that other person did not have, but what the debtor had in the property which was given as a pledge, that must be considered.