135 guided in the first place by the actual meaning of the parties if that could be ascertained; but if it was matter of doubt, then all acorns that had fallen off the trees not yet lopped belonged to the vendor, but those which remained on the trees at the time of lopping belonged to the vendee. 3. A thing cannot be considered as sold, if the intention is that the property in it shall not pass to the vendee: such a transaction is either hiring or some other kind of contract. 81. SCAEVOLA. Titius borrowed a sum of money at interest, and pledged or hypothecated certain lands and gave Lucius as his surety, promising to release him within the next three years: in the event of his failing to do so within the period mentioned, and the surety paying up the debt to the creditor, he declared the lands pledged to the creditors to be his by purchase. Titius having failed to release Lucius his surety, the question was put whether the latter, provided he satisfied the creditor's claim, acquired by purchase the lands foresaid. The opinion was to the effect that, if there was a conditional sale of the lands, not by way of security but as a purchase outright, that constituted a binding obligation. 1. Lucius Titius promised to supply from his land 100,000 bushels of corn a year to the lands of Gaius Seius; thereafter Lucius Titius sold his land, with an express clause that the lands are sold and shall be held subject to the same rights and burdens under which they are now held by Lucius Titius': Query, is the creditor who holds a pledge in security of a debt past due, and is about to exercise his power of sale (distractio used, as often, of forced sale) is begged by his debtor to become the purchaser himself at a certain price. He agrees, and the debtor writes a letter bearing that he has sold to him. Held, that the debtor cannot revoke the sale by offering to pay up the debt with interest. § 1. The ground of the opinion is that the prestation of the corn is a personal obligation, and therefore does not run with the quaero, an emptor Gaio Seio ad praestationem frumenti sit obnoxius. respondit emptorem Gaio Seio secundum ea quae proponerentur obligatum non esse. lands. The proprietor could bind himself, but the law did not admit the possibility of charging the property with an obligation transmissible to his successors. No doubt the owner could purchaser bound to deliver the corn to Gaius Seius? The answer was that, in the circumstances stated, the purchaser was not liable to Gaius Seius. burden the lands with servitudes, but the rule was seruitus in faciendo consistere nequit, the servitude could not degenerate into an obligation' (Ihering). |
