[IDEM libro uicensimo primo ad edictum. ] §6.1.27.prSin autem cum a Titio petere uellem, aliquis dixerit se possidere et ideo liti se optulit, et hoc ipsum in re agenda testatione probauero, omnimodo condemnandus est.
[THE SAME, in the twenty-first book on the Edict.] But if, when I wished to claim the property from Titius, someone else declared that he possessed it and therefore offered himself for the lawsuit, and I prove this very fact during the trial by producing evidence, he must by all means be condemned.
§6.1.27.1Possidere autem aliquis debet utique et litis contestatae tempore et quo res iudicatur.
Moreover, a person must certainly possess both at the time of the joinder of issue and when judgment is given.
quod si litis contestationis tempore possedit, cum autem res iudicatur sine dolo malo amisit possessionem, absoluendus est possessor.
But if he possessed at the time of the joinder of issue, but when judgment is given he has lost possession without willful intent, the possessor must be absolved.
item si litis contestatae tempore non possedit, quo autem iudicatur possidet, probanda est Proculi sententia, ut omnimodo condemnetur: ergo et fructuum nomine ex quo coepit possidere damnabitur.
Likewise, if he did not possess at the time of the joinder of issue, but possesses when judgment is given, Proculus's opinion must be approved, to the effect that he should by all means be condemned; therefore, he will also be condemned under the head of fruits from the time he began to possess.
§6.1.27.2Si homo petitus dolo possessoris deterior factus sit, deinde sine culpa eius ex alia causa mortuus sit, aestimatio non fiet eius, quod deteriorem eum fecerat, quia nihil interest petitoris: sed haec quantum ad in rem actionem: legis autem Aquiliae actio durat.
If a slave claimed by the action has been made worse by the willful act of the possessor, and has subsequently died from another cause without his fault, no valuation will be made of what had made him worse, because it is of no interest to the plaintiff; but this is so far as the action in rem is concerned; the action under the Lex Aquilia, however, remains.
§6.1.27.3Sed et is, qui ante litem contestatam dolo desiit rem possidere, tenetur in rem actione: idque ex senatus consulto colligi potest, quo cautum est, ut diximus, ut dolus praeteritus in hereditatis petitionem ueniat: cum enim in hereditatis petitione, quae et ipsa in rem est, dolus praeteritus fertur, non est absurdum per consequentias et in speciali in rem actione dolum praeteritum deduci.
But also he who, before the joinder of issue, has by fraud ceased to possess the thing, is held liable in the action in rem; and this can be inferred from the senate decree by which it was provided, as we have said, that past fraud should come into the petition for inheritance; for since past fraud is brought into the petition for inheritance, which itself is also an action in rem, it is not absurd by logical consequence that past fraud should also be brought into a specific action in rem.
§6.1.27.4Si per filium aut per seruum pater uel dominus possideat et is sine culpa patris dominiue rei iudicandae tempore absit: uel tempus dandum uel cauendum est de possessione restituenda.
If a father or master possesses through a son or a slave, and the latter is absent without the fault of the father or master at the time of judgment, either a trial of time must be granted or security must be given for the restoration of possession.
§6.1.27.5In rem petitam si possessor ante litem contestatam sumptus fecit, per doli mali exceptionem ratio eorum haberi debet, si perseueret actor petere rem suam non redditis sumptibus.
If, in respect of the thing claimed, the possessor has incurred expenses before the joinder of issue, account must be taken of them by means of the plea of fraud, if the plaintiff persists in claiming his property without having repaid the expenses.
idem est etiam, si noxali iudicio seruum defendit et damnatus praestitit pecuniam, aut in area quae fuit petitoris per errorem insulam aedificauit: nisi tamen paratus sit petitor pati tollere eum aedificium.
The same is also true if he defended a slave in a noxal action and, having been condemned, paid the money, or built an apartment block by mistake on a plot of land belonging to the plaintiff; unless, however, the plaintiff is prepared to allow him to remove the building.
quod et in area uxori donata per iudicem, qui de dote cognoscit, faciendum dixerunt.
And they said this should also be done in the case of a plot of land donated to a wife, by the judge who takes cognizance of the dowry.
sed si puerum meum, cum possideres, erudisses, non idem obseruandum Proculus existimat, quia neque carere seruo meo debeam nec potest remedium idem adhiberi, quod in area diximus:
But if, while you possessed my slave-boy, you had educated him, Proculus thinks that the same rule should not be observed, because neither ought I to be deprived of my slave, nor can the same remedy be applied which we mentioned in the case of the plot of land;