[PAULUS libro quarto decimo quaestionum. ] §44.2.30.prEx sextante heres institutus, qui intestato legitimus heres esse potest, cum de iure testamenti faceret quaestionem, ab uno ex institutis dimidiam partem hereditatis petiit nec optinuit.
[PAULUS, Questions, book fourteen] An heir appointed to a sixth part, who could be a statutory heir in case of intestacy, when he raised a dispute regarding the validity of the will, claimed half of the inheritance from one of the appointed heirs, and did not obtain it.
uidetur in illa petitione etiam partem sextantis uindicasse et ideo, si coeperit ab eodem ex testamento eandem portionem petere, obstabit ei exceptio rei iudicatae.
He is deemed in that claim to have also vindicated his sixth part, and therefore, if he begins to claim the same portion from the same person under the will, the defense of res judicata will block him.
§44.2.30.1Latinus Largus: cum de hereditate inter Maeuium, ad quem pertinebat, et Titium, qui controuersiam mouerat, transigeretur, traditio rerum hereditariarum Maeuio heredi a Titio facta est, in qua traditione etiam fundum ei suum proprium, quem ante multos annos auo eiusdem Maeuii heredis obligauerat quemque alii postea in obligationem deduxerat, ex causa pacti tradidit.
Latinus Largus: when a settlement was made concerning the inheritance between Maevius, to whom it belonged, and Titius, who had raised a dispute, the delivery of the inherited things was made by Titius to the heir Maevius, in which delivery Titius also delivered to him, on account of the agreement, his own proper land, which many years before he had pledged to the grandfather of the same heir Maevius, and which he had subsequently given in pledge to another.
his gestis posterior Titii creditor ius suum persecutus est et optinuit.
After these transactions, a later creditor of Titius pursued his right and prevailed.
post hoc iudicium Maeuius heres repperit in rebus auitis chirographum eiusdem Titii ante multos annos conscriptum, per quod apparuit eum fundum, qui in causam transactionis uenerat, etiam auo suo ab eodem Titio fuisse obligatum.
After this judgment, the heir Maevius found among his grandfather's belongings a chirograph of the same Titius written many years before, through which it appeared that the land, which had become the subject of the settlement, had also been pledged to his grandfather by the same Titius.
cum ergo constet prius auo Maeuii heredis in obligationem eundem fundum datum, de quo Maeuius superatus est, quaero, an ius aui sui, quod tunc, cum de eodem fundo ageretur, ignorabat, nulla exceptione opposita exsequi possit.
Since therefore it is established that the same land, concerning which Maevius was defeated, had previously been given in pledge to the grandfather of the heir Maevius, I ask whether he can pursue the right of his grandfather, which he did not know at the time when the action concerning the same land was being litigated, without any defense being opposed to him.
respondi: si de proprietate fundi litigatur et secundum actorem pronuntiatum fuisset, diceremus petenti ei, qui in priore iudicio uictus est, obstaturam rei iudicatae exceptionem, quoniam de eius quoque iure quaesitum uidetur, cum actor petitionem implet.
I replied: if the litigation is about the ownership of the land and judgment had been pronounced in favor of the plaintiff, we would say that the defense of res judicata would block the claimant who was defeated in the prior trial, because his right also seems to have been examined when the plaintiff satisfies his claim.
quod si possessor absolutus amissa possessione eundem ab eodem, qui prius non optinuit, peteret, non obesset ei exceptio: nihil enim in suo iudicio de iure eius statutum uideretur.
But if the acquitted possessor, having lost possession, should claim the same land from the same person who did not previously prevail, the defense would not stand in his way; for nothing would seem to have been decided concerning his right in his own trial.
cum autem pigneraticia actum est aduersus priorem creditorem, potest fieri, ut de iure possessoris non sit quaesitum, quia non, ut in proprietatis quaestione quod meum est alterius non est, ita in obligatione utique consequens est, ut non sit alii obligatum, quod hic probabit sibi teneri.
However, when an action on the pledge is brought against a prior creditor, it is possible that the right of the possessor has not been examined, because, unlike in a question of ownership where "what is mine is not another's," in a pledge-obligation it is by no means a consequence that what this person proves is held for him has not been pledged to another.
et probabilius dicitur non obstare exceptionem, quoniam de iure possessoris quaesitum non est, sed de sola obligatione.
And it is more plausibly said that the defense does not block, since the examination was not about the right of the possessor, but solely about the obligation.
in proposita autem quaestione magis me illud mouet, numquid pignoris ius extinctum sit dominio adquisito: neque enim potest pignus perseuerare domino constituto creditore.
But in the proposed question, this rather moves me, whether the right of pledge was extinguished by the acquisition of ownership: for a pledge cannot continue to exist when the creditor has become the owner.
actio tamen pigneraticia competit: uerum est enim et pigneri datum et satisfactum non esse, quare puto non obstare rei iudicatae exceptionem.
Nevertheless, the action on the pledge is available: for it is true both that it was given in pledge and that satisfaction has not been made, wherefore I think that the defense of res judicata does not block.