[MODESTINUS libro quarto responsorum. ] §20.6.9.prTitius Sempronio fundum pignori dedit et eundem fundum postea Gaio Seio pignori dedit, atque ita idem Titius Sempronio et Gaio Seio fundum eundem in assem uendidit, quibus pignori ante dederat in solidum singulis.
[MODESTINUS from the fourth book of Responses.] Titius gave a tract of land in pledge to Sempronius, and later gave the same tract of land in pledge to Gaius Seius; and thus the same Titius sold the same tract of land in full to Sempronius and Gaius Seius, to each of whom he had previously given it in pledge for the whole.
quaero, an uenditione interposita ius pignoris exstinctum sit ac per hoc ius solum emptionis apud ambos permanserit.
I ask whether, by the intervention of the sale, the right of pledge was extinguished, and thereby only the right of purchase remained with both.
Modestinus respondit dominium ad eos de quibus quaeritur emptionis iure pertinere: cum consensum mutuo uenditioni dedisse proponantur, inuicem pigneraticiam actionem eos non habere.
Modestinus answered that the ownership belongs to those concerning whom the inquiry is made by the right of purchase; since they are assumed to have given mutual consent to the sale, they do not have a hypothecary action against each other.
§20.6.9.1Titius Seio pecuniam sub pignore fundi dederat: qui fundus cum esset rei publicae ante obligatus, secundus creditor pecuniam rei publicae eam soluit: sed Maeuius exstitit, qui dicebat ante rem publicam sibi fundum obligatum fuisse: inueniebatur autem Maeuius instrumento cautionis cum re publica facto a Seio interfuisse et subscripsisse, quo cauerat Seius fundum nulli alii esse obligatum: quaero, an actio aliqua in rem Maeuio competere potest.
Titius had lent money to Seius under the pledge of a tract of land; since this land had been previously obligated to the state, the second creditor paid that money to the state; but Maevius appeared, who said that the land had been obligated to him before the state; however, it was discovered that Maevius had been present at and had signed the instrument of security made by Seius with the state, in which Seius had guaranteed that the land was obligated to no one else. I ask whether any action in rem can belong to Maevius.
Modestinus respondit pignus, cui is de quo quaeritur consensit, minime eum retinere posse.
Modestinus answered that he can by no means retain the pledge to which the person concerning whom the inquiry is made consented.