evictio
- a recovering of one's property by a judicial decision, a recovery, eviction, Dig. 21, tit. 2; Cod. Just. 8, 45, De evictionibus.
post ~onem, si petentem evincere contigerit, regressum inde habere poterit versus evictorem
petens tenetur ad waranciam per ‥ obligacionem sui antecessoris et quanquam de ~one tenet accio, ipsum ab agendo repellit excepcio
promittentes ‥ bona fide ipsi Bertrando legitime stipulanti pro se et suis successoribus ‥ super premissis ‥ plenam et integram ~onem et garenciam portare in judicio et extra
si ‥ dicta terre particula per legem patrie evicta fuerit et ‥ alienata ‥ ego vel heredes ‥ mei ‥ infra spacium duorum mensium a tempore dicte ~onis numerandorum tantum de terra nostra ‥ eisdem ‥ restituemus
nuncii pape ‥ prelatos et clerum procuracionibus, ~onibus [? l. eveccionibus ], et aliis ‥ gravaminibus vexaverunt
Evictio Tyranni, i. victoria relata de Tyranno.
EVI´CTIOEvincerc means generally to deprive a person of a thing or right, of which he is in the enjoyment, by legal process (Dig. 5, 2, 21, 2; 5, 3, 17, 55); but far the commonest case of evictio is that of the contract of sale [EMPTIO VENDITIO]. The vendor not being bound to make the purchaser owner of the thing sold (Dig. 19, 1, 11, 2), things were often bought and sold which did not belong to the vendor; and as the latter could give no better title than he had himself (Dig. 40, 1, 20, pr.), the purchaser was liable to be deprived of the res vendita ( evicted) by the lawful owner. Originally there seems to have been no obligation on the vendor to compensate on such eviction, except in sales by mancipation, when the vendor was bound to return double the price to the purchaser, in such an event (Paul Sent. rec. 2, 17, 3): but in ordinary sales it seems to have become usual for the purchaser to stipulate from the vendor for a penal sum of twice the amount of the purchase-money (stipulatio duplae) if deprived of the property by any one with a better title. Eventually it became a general rule of law, that if the purchaser was evicted by legal process, the vendor must indemnify him (evictionem praestare, Dig. 21, 2, 1). But it was necessary that the purchaser should neglect no proper means of defence, when an attempt was made to evict him; and it was his duty to give the vendor notice of the adverse claim (litem denunciare) and to pray his aid in defence of the action. (Dig. 21, 2, de evictionibus et duplae stipulatione; K. O. Müller, Die Lehrevon der Eviction, Part 1, Halle, 1851; Bekker, Zur Lehre von der Eviclionsleistung, Jahrbuchder Gemein. Rechts, vi. pp. 229-336; Windscheid, Pandektenlehrbuch, § § 391, 392; Brinz, Lehrbuch, vol. 2.281; cf. Holtzendorff's Rechtslexicon,,s. v. Entwahrung.)
[J.B.M]In Roman law evincere means generally to deprive a person of a thing or right, of which he is in the enjoyment, by legal process; but the commonest case of evictio is that of the contract of sale. (See emptio et venditio.) The vendor not being bound to make the purchaser owner of the thing sold (Dig. xix. 1. 11. 2), things were often bought and sold which did not belong to the vendor; and as the latter could give no better title than he had himself, the purchaser was liable to be deprived of the res vendita (i. e. “evicted”) by the lawful owner. Originally there seems to have been no obligation on the vendor to compensate on such eviction, except in sales by mancipation, when the vendor was bound to return double the price to the purchaser, in such an event ( Paul. Sent.rec. 2. 17. 3); but in ordinary sales it seems to have become usual for the purchaser to stipulate from the vendor for a penal sum of twice the amount of the purchase-money (stipulatio duplae), if deprived of the property by any one with a better title. Eventually it became a general rule of law that if the purchaser was “evicted” by legal process, the vendor must indemnify him (Dig. xxi. 2. 1).