[ULPIANUS libro quinquagensimo tertio ad edictum. ] §39.2.15.15Si plures sunt, qui postulent ut caueatur, omnes mitti in possessionem solent.
[ULPIANUS on the edict, book 53.] If there are several who request that security be given, all are usually admitted into possession.
idemque Labeo probat et si prius quis in possessionem missus sit et alius mitti desideret: nam non spectabimus ordinem, sed habebunt ambo possessionem.
And Labeo approves the same also if someone has previously been admitted into possession and another desires to be admitted: for we shall not look at the order, but both will have possession.
quod si iam prior possidere iussus sit et alius damni infecti caueri desideret, tunc nisi cauetur, mittetur in possessionem posterior.
But if the former has already been ordered to possess, and another desires security to be given to him against threatened damage, then unless security is given, the latter will be admitted into possession.
§39.2.15.16Iulianus scribit eum, qui in possessionem damni infecti nomine mittitur, non prius incipere per longum tempus dominium capere, quam secundo decreto a praetore dominus constituatur.
Julian writes that he who is admitted into possession on account of threatened damage does not begin to acquire ownership by long-time possession before he is established as owner by a second decree of the praetor.
§39.2.15.17Si ante hoc decretum alius quoque in possessionem missus fuerit, aequaliter ambo aedium fiunt domini, scilicet cum iussi fuerint possidere.
If before this decree another person also has been admitted into possession, both become owners of the house equally, namely when they have been ordered to possess.
si uero iam constituto domino eo, qui primus in possessionem missus est, Titius damni infecti sibi caueri desiderabit, cessante primo cauere solus Titius erit in possessione.
But if, when he who was first admitted into possession has already been established as owner, Titius desires security against threatened damage to be given to him, if the first fails to give security, Titius alone will be in possession.
§39.2.15.18Cum autem plures mittuntur in possessionem, aequaliter mittuntur, non pro rata damni, quod unumquemque contingeret, et merito: nam et cum unus mittitur, non pro portione damni mittitur, sed in totum: cum igitur plures mittuntur, aequaliter omnes quasi in totum missi concursu partes habebunt.
Moreover, when several are admitted into possession, they are admitted equally, not in proportion to the damage which would affect each one, and deservedly so: for even when one is admitted, he is admitted not in proportion to the damage, but into the whole: therefore, when several are admitted, all, having been admitted as if into the whole, will have equal shares by concurrence.
§39.2.15.19Sed si quis eorum missus in possessionem sumptum fecerit, deinde iubeatur possidere, an sumptum consequi possit is qui fecit et quo iudicio? et placet communi diuidundo iudicio consequi eum posse.
But if one of them, having been admitted into possession, has incurred expense, and then is ordered to possess, can he who incurred it recover the expense, and by what action? And it is held that he can recover it by the action for dividing common property.
§39.2.15.20Si quis autem in possessionem missus, nondum possidere iussus sit, an dominus decedere possessione debeat, uideamus.
Moreover, let us see whether, if someone has been admitted into possession but has not yet been ordered to possess, the owner ought to withdraw from possession.
et ait Labeo non decedere, sicuti nec cum creditores uel legatarii mittuntur: idque est uerius.
And Labeo says that he does not withdraw, just as he does not when creditors or legatees are admitted; and this is more correct.
§39.2.15.21Non autem statim ubi misit praetor in possessionem, etiam possidere iubet, sed tunc demum, cum iusta causa uidebitur (ergo interuallum aliquod debebit intercedere), quod aut pro derelicto aedes longo silentio dominus uideatur habuisse aut emisso in possessionem et aliquamdiu immorato nemo caueat.
But the praetor does not, immediately upon admitting into possession, also order to possess, but only then when there appears to be a just cause (therefore some interval must intervene), because either the owner seems to have treated the house as abandoned by his long silence, or, after someone has been sent into possession and has stayed there for some time, no one gives security.
§39.2.15.22Si forte dominus rei publicae causa abest aut ex alia iusta causa aut in ea sit aetate cui subueniri solet, probandum est non debere praetorem festinare ad decernendum, ut iubeat possidere.
If by chance the owner is absent on public business, or for another just cause, or is of that age which is customarily assisted, it must be approved that the praetor ought not to hasten to decree that he orders to possess.
sed etsi decreuerit, nemo dubitat in integrum restitutionem indulturum.
But even if he has decreed, no one doubts that he will grant restitution to the original state.
§39.2.15.23Ubi autem quis possidere iussus est, dominus deiciendus erit possessione.
But when someone has been ordered to possess, the owner will have to be ejected from possession.
§39.2.15.24Si qua sint iura debita his, qui potuerunt de damno infecto satisdare, deneganda erit eorum persecutio aduersus eum, qui in possessionem missus est: et ita Labeo probat.
If there are any rights due to those who were able to give security against threatened damage, their pursuit against him who has been admitted into possession will have to be denied; and Labeo so approves.
§39.2.15.25Item quaeritur in pigneraticio creditore, an pignoris persecutio denegetur aduersus eum, qui iussus sit possidere.
Likewise, it is asked in the case of a pledge creditor, whether the pursuit of the pledge is denied against him who has been ordered to possess.
et magis est, ut, si neque debitor repromisit neque creditor satisdedit, pignoris persecutio denegetur.
And it is more correct that, if neither the debtor has promised nor the creditor has given security, the pursuit of the pledge is denied.
quod et in fructuario recte Celsus scribit.
Which Celsus rightly writes also in the case of a usufructuary.
§39.2.15.26Si de uectigalibus aedibus non caueatur, mittendum in possessionem dicemus nec iubendum possidere (nec enim dominium capere possidendo potest), sed decernendum, ut eodem iure esset, quo foret is qui non cauerat: post quod decretum uectigali actione uti poterit.
If security is not given concerning a leasehold house, we shall say that admission into possession must be granted but order to possess must not be given (for indeed he cannot acquire ownership by possessing), but it must be decreed that he should be in the same legal position as he who had not given security would have been; after which decree he will be able to use the action for leasehold.
§39.2.15.27Sed in uectigali praedio si municipes non cauerint, dicendum est dominium per longum tempus adquiri.
But if, in the case of a leasehold estate, the municipal citizens have not given security, it must be said that ownership is acquired by long time.
§39.2.15.28Eleganter quaeritur, si, dum praetor de danda stipulatione deliberat, damnum contigerit, an sarciri possit.
It is elegantly asked, if, while the praetor is deliberating about granting the stipulation, damage has occurred, whether it can be made good.
et missio quidem cessabit: praetor tamen decernere debet, quidquid damni contigerit, ut de eo quoque caueatur, aut, si putat, quod utiliter actionem daturus sit, decernat.
And indeed, admission into possession will cease; however, the praetor ought to decree that, whatever damage has occurred, security must be given for that as well, or, if he thinks so, decree that he will grant an action on the ground of utility.