[IDEM libro uicensimo septimo quaestionum. ] §42.6.3.prDebitor fideiussori heres extitit eiusque bona uenierunt: quamuis obligatio fideiussionis extincta sit, nihilo minus separatio impetrabitur petente eo, cui fideiussor fuerat obligatus, siue solus sit hereditarius creditor siue plures.
[THE SAME, Questions, Book 27] A debtor became the heir to his surety, and his goods were sold: although the obligation of suretyship has been extinguished, a separation of goods will nevertheless be obtained upon the petition of him to whom the surety had been obligated, whether he be the sole creditor of the inheritance or there are several.
neque enim ratio iuris, quae causam fideiussionis propter principalem obligationem, quae maior fuit, exclusit, damno debet adficere creditorem, qui sibi diligenter prospexerat.
For the rule of law, which excluded the cause of suretyship on account of the principal obligation, which was greater, ought not to inflict damage upon the creditor who had diligently looked out for his own interest.
§42.6.3.1Quid ergo, si bonis fideiussoris separatis solidum ex hereditate stipulator consequi non possit? utrum portio cum ceteris heredis creditoribus ei quaerenda erit an contentus esse debebit bonis, quae separari maluit? sed cum stipulator iste non adita fideiussoris a reo hereditate bonis fideiussoris uenditis in residuum pro misceri debitoris creditoribus potuerit, ratio non patitur eum in proposito summoueri.
What then, if, the goods of the surety having been separated, the stipulator cannot obtain the full amount from the inheritance? Must a portion be sought by him along with the other creditors of the heir, or must he be content with the goods which he preferred to be separated? But since this stipulator, if the inheritance of the surety had not been accepted by the debtor and the goods of the surety had been sold, could have been mingled with the creditors of the debtor for the remainder, reason does not allow him to be excluded in the present case.
§42.6.3.2Sed in quolibet alio creditore, qui separationem impetrauit, probari commodius est, ut, si solidum ex hereditate seruari non possit, ita demum aliquid ex bonis heredis ferat, si proprii creditores heredis fuerint dimissi.
But in the case of any other creditor who has obtained separation, it is more convenient to hold that, if the full amount cannot be recovered from the inheritance, he may only then receive something from the goods of the heir if the heir's own creditors have been satisfied.
quod sine dubio admittendum est circa creditores heredis dimissis hereditariis.
This without doubt must be admitted regarding the creditors of the heir, once the creditors of the inheritance have been satisfied.