1Papinianus, Questions, Book VIII. Ad Dig. 20,4,1 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 242, Note 8.A certain man who promised a dowry for a woman accepted a pledge or an hypothecation to secure the restitution of the dowry to himself. Having paid a portion of it, the husband afterwards gave the same property in pledge to another party, and afterwards the remainder of the dowry was paid. A question arose with reference to the pledge. Since the party who promised the dowry is required to pay the entire amount on account of his promise, the times of payment should not be taken into account, but the date when the obligation was contracted. It cannot properly be said that it is in the power of the party not to pay the remainder of the money, because, under these circumstances, the woman would not seem to be endowed. 1The case of him who receives a pledge is different, when this is done to secure the payment of a debt within a certain time; where, for instance, the property was pledged to another before the money was paid.

2Ad Dig. 20,4,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 235, Note 24.The Same, Opinions, Book III. He who, in general terms, has received the property of a debtor by way of pledge, is in a better position than he to whom a tract of land forming part of the property of the debtor is subsequently hypothecated. If, however, the agreement was made with the first creditor that other property shall only be liable by way of pledge where his right to that which he has accepted under a general hypothecation is not sufficient to secure the debt, and the second agreement fails, the second creditor will be found to be the sole, rather than the preferred one, so far as the pledge subsequently given is concerned.

3The Same, Opinions, Book XI. Where a creditor received pledges which had also been received by a second creditor in accordance with the terms of another agreement, and a renewal having afterwards been made, he added other pledges to the former ones, it was held that the advantage of priority remained with the first creditor, as he had practically been subrogated to himself. 1Where a tract of land was due to Titius on account of a mandate, and he for whom the business had been transacted pledged it before possession of the same had been delivered to him, and after it had been delivered, he pledged the same land again to another party, the position of the first creditor appears to be preferable, if the second creditor did not pay the price of the land to the party who transacted the business, and it would be held that his position would be preferable, dependent upon the amount that he paid and the interest on the same, unless the first creditor offered to return him the money. If, however, the debtor should pay money derived from some other source, the first creditor should be preferred. 2After a division of a tract of land by certain boundaries had been made, it was agreed between two brothers that, if one of them should not release his undivided share of the land, which had been given to a creditor by way of pledge, the other brother could sell half of the share of his brother obtained by the division. I thought that a contract of pledge should be understood to have been concluded, but that the first creditor ought not to be preferred to the second, since the second pledge seemed to apply to that portion which the brother could not encumber beyond his own share, without the consent of his joint-owner.

4Pomponius, On Sabinus, Book XXXV. If a debtor, before redeeming his pledge from his first creditor, should pledge the same property to another for money lent, and, before he pays what is due to either creditor, sells other property to the first creditor for the purpose of setting off the debt against the price of the property sold; it must be held that this has the same effect as if the money had been paid to the first creditor, for it makes no difference whether he discharged the debt by payment, or by set-off, and therefore the position of the second creditor is preferable.

5Ulpianus, Disputations, Book III. Sometimes the position of the second creditor is preferable to that of the first; for example, where the money which the second creditor borrowed has been spent for the preservation of the property itself; as for instance where a ship was pledged, and I lent money for the purpose of equipping or repairing it.

6The Same, On the Edict, Book LXXIII. Hence, the money of the second creditor insures the safety of the entire pledge. This is also the case where money is lent for the support of the sailors, without which the ship could not safely arrive at its destination. 1Moreover, where anyone has lent money on merchandise pledged to himself either for its preservation or to defray the expenses of transportation, he will be preferred, even though he may be a second creditor; for the expenses of transportation are a prior lien. 2Ad Dig. 20,4,6,2ROHGE, Bd. 6 (1872), S. 281: Pfandrecht des Vermiethers an den eingebrachten zum Verkaufe bestimmten Waaren des Miethers. Zeitweise und dauernde Bestimmung der Verwendung.The same rule applies where the rent of a warehouse, or of land, or of transportation of merchandise by beasts of burden is due; for, under such circumstances, this creditor will be preferred.

7The Same, Disputations, Book III. The same rule applies to property purchased with the money of a ward. Wherefore, if the property was purchased with the money of two wards, each of them will have a right in the pledge in proportion to the sums expended for the purchase. If, however, the property was not entirely bought with the money of one creditor, each creditor will be entitled to participate, that is, the first creditor and the one with whose money the property was purchased. 1Ad Dig. 20,4,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 242, Note 10.If I should encumber to you any property which I may hereafter obtain, and expressly hypothecate to Titius a certain tract of land, provided I should, in time, acquire its ownership, and I subsequently do acquire it; Marcellus holds that both creditors have a right to the pledge. For it is not of much importance whether or not the debtor paid for the land out of his own funds, since, as it was bought with money obtained on pledge, the property is not to be considered pledged merely because the money was obtained from such a source.

8The Same, Disputations, Book VII. Where the government expressly takes property by way of pledge, it must be said that it will be preferred to the Treasury, if the debtor afterwards becomes bound to the Treasury; because private individuals would, in an instance of this kind, be preferred.

9Africanus, Questions, Book VIII. Ad Dig. 20,4,9 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 242, Note 5.A certain man rented a bath from the next Kalends, and it was agreed that the slave Eros should be held by the lessor in pledge until the rent was paid. The lessee gave the same Eros in pledge to another person for money loaned before the Kalends of July. Advice having been taken as to whether, when this creditor brought suit for the recovery of Eros, the Prætor should protect the lessor, the opinion was that he should; for although the slave was given by way of pledge at a time when no rent was due, because at that time Eros had begun to be in such a position that the right of pledge attaching to him could not be released without the consent of the lessor, his position should be considered preferable. 1Ad Dig. 20,4,9,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 15.The authority goes still farther and holds that, where money is lent under a condition, a creditor should be protected against a subsequent creditor, provided the condition is not one which cannot be complied with without the consent of the debtor. 2If, however, an heir should make an agreement pledging his property on account of legacies bequeathed under a condition, and he afterwards pledges the same property already encumbered on account of money borrowed, and the condition upon which the legacies are dependent is subsequently fulfilled; it is held that, in this instance, he to whom the pledge was first given must be protected. 3Ad Dig. 20,4,9,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 230, Note 8; Bd. I, § 241, Note 3.Titia gave a tract of land which was not hers in pledge to Titius, and subsequently pledged it to Mævius, and then, having become the owner of the property, she bestowed it upon her husband as a dowry, after its value had been appraised. It was decided that if the money was paid to Titius, Mævius would have no better claim to the pledge for that reason; for where the right of the first creditor was released, that of the second was confirmed, since the property was found to belong to the debtor. In the case proposed, however, the husband occupies the position of a purchaser, and therefore, since neither when the property was encumbered to Mævius, nor when payment was made to Titius, it was owned by the woman, at no time could the pledge to Mævius be valid. This, however, is only true where the husband accepted the land as dowry after it had been appraised, and did so in good faith; that is to say, if he was not aware that it was hypothecated to Mævius.

10Ulpianus, Opinions, Book I. If, after sentence has been pronounced, a pledge should be taken in a case by the authority of someone who can order this to be done, the heir of the party to whom the pledge was given will be preferred through the privilege of priority of time.

11Gaius, On the Hypothecary Formula. In the case of a pledge, the creditor who first lent the money and accepted the hypothecation, is to be preferred; even though the debtor had previously agreed with another that if he borrowed money from him the same property should be bound, even if he subsequently did receive the money from him; for notwithstanding he had previously agreed to do so, he was not obliged to take the money. 1Ad Dig. 20,4,11,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 91, Note 1.Let us see whether the same principle applies where a stipulation is made under a condition, and a mortgage executed; and, while the transaction was pending, another creditor made a loan absolutely, and received the same hypothecated property as security; and then, if the condition of the first stipulation should be fulfilled, will the creditor who afterwards lent money be entitled to the preference? I fear, however, that another view must be taken in this instance; for, when the condition has once been complied with, the result will be that it will have the same effect as if no condition was prescribed at the time the stipulation was entered into. This is the better opinion. 2Ad Dig. 20,4,11,2ROHGE, Bd. 6 (1872), S. 281: Pfandrecht des Vermiethers an den eingebrachten zum Verkaufe bestimmten Waaren des Miethers. Zeitweise und dauernde Bestimmung der Verwendung.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 242, Note 9; Bd. I, § 239, Note 2.Where a tenant agrees that everything brought upon the land or originating therein shall be pledged, and, before bringing anything there, he hypothecates his property to another, and then brings it upon the land, that creditor will be preferred who absolutely and expressly received the pledge; for the reason that the property is not liable under the first agreement, but under that where it is brought upon the land, which was done in the later transaction. 3Ad Dig. 20,4,11,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 230, Note 10.When a contract is made with reference to the hypothecation of property to come into existence hereafter, as, for instance, with reference to the offspring of a female slave; the question arises whether the slave was included in the property of the debtor at the time of the execution of the contract; and with reference to crops, where it is agreed that they shall be subject to pledge, it also should be ascertained whether the land or the right of usufruct belonged to the debtor when the agreement was entered into. 4Where the second creditor is ready to pay the first one what is owing to him, let us see whether he will be entitled to the Hypothecary Action, if the first creditor refuses to accept the money. We hold that the action cannot be brought by the first creditor, since he was responsible for the money not having been paid.

12Marcianus, On the Hypothecary Formula. Where a first creditor has received property in pledge, or is in possession of the same, and another sues to receive it by means of the Hypothecary Action; the first creditor can lawfully avail himself of the exception: “If the property had not previously been encumbered to me by pledge or hypothecation. Or, where the other party is in possession, the first creditor can bring suit to recover the property by means of the Hypothecary Action, and if he is opposed by the exception,” “If the agreement had not been made that the property should be encumbered to him,” he can reply in the manner above mentioned. Where, however, the second creditor proceeds against another party in possession, he can do so legally, and the property hypothecated can be adjudged to him, but in such a way that the first creditor can deprive him of it by an action. 1Where a possessor has had judgment rendered against him in the manner previously stated, because he did not return the property pledged, and also has been ordered to pay the damages assessed; the question arises whether he will still be liable to the second creditor, even if the money has been paid to the first? I think that this opinion should be adopted. 2Where the first creditor lent money without security, and the second one did the same thing, but took security, and then the first one received the same property in hypothecation for his debt; there is no doubt that the second creditor is entitled to the preference. Wherefore, if a contract was made with reference to the hypothecation of property to the first creditor within a certain time, his claim will undoubtedly be preferred; even though, before the time elapsed, the debtor entered into an absolute agreement hypothecating the same property to the other creditor. 3Where the same creditor lends two sums of money at different times, that is to say, before and after the second creditor, he will be preferred to the second creditor, and in the other instance he will be the third. 4If a debtor hypothecates property to you and then encumbers the same property to another with your consent, the second creditor will be preferred. The question very properly arises, where the money is paid to the second creditor, is the property still encumbered to you? A question of fact which depends upon the intention of the parties is here involved; for, when the first creditor permitted the property to be encumbered to another, the point is whether it was entirely released from the lien, or whether the usual order should be observed, and the first creditor should take the place of the second. 5Papinianus states in the Eleventh Book that if the first creditor, after a renewal of the obligation, takes the same pledges together with others, he is then subrogated to himself; but if the second creditor does not tender him the money, he can sell the pledge in such a way as only to obtain the first money expended, and not what he subsequently lent; and any excess above the first loan which he receives he must pay to the second creditor. 6It must be borne in mind that, even if the debtor is unwilling, the property will be liable to the second creditor, not only for his own debt, but also for that of the first creditor, as well as for the interest, and what he has paid to the first creditor; but where the second creditor paid the interest due to the first, he does not recover his own interest, for he was not transacting the business of another, but really his own. Papinianus also states this in the Third Book of Opinions, and it is correct. 7Where a simple hypothecation has been agreed upon by the second creditor, he can recover the hypothecated property from any other possessor except the first creditor and anyone who purchases it from him. 8Ad Dig. 20,4,12,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 233b, Note 4.A man having borrowed money from Titius, made an agreement with him that his land should be either pledged or hypothecated to him. He afterwards borrowed money from Mævius, and agreed with him that, if the said land should cease to be encumbered to Titius, it should be encumbered to him. Then a third party lends the debtor money on condition that he shall pay Titius, and enters into an agreement with him that the same land shall be either pledged or hypothecated to him, and that he shall be subrogated to Titius. The question arises whether the second creditor is to be preferred to the third, who agreed that, the money having been paid to Titius, the condition should be carried out, and the third creditor should only blame himself for his own negligence. In this instance, the third creditor should be preferred to the second. 9Ad Dig. 20,4,12,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 241, Note 3.Where a third creditor permits property pledged to him to be sold, in order that the proceeds may be paid to the first creditor, and that he may be subrogated to the first with reference to other pledges; Papinianus says, in the Eleventh Book of Opinions, that he will be subrogated to him, and in fact the second creditor has no other right, except to pay the claim of the first, and succeed to his place. 10Where property is hypothecated to the first creditor, but nothing has been agreed upon with reference to its sale, and an agreement has been made with a subsequent creditor for the sale of the same; it is the better opinion that the claim of the first creditor should be preferred. For it is settled with reference to a pledge, that where an agreement is made with the first creditor, even though the property should be delivered to the second, the former is entitled to priority.

13Paulus, On Plautius, Book V. I sold you a house, with the understanding that the rent of the first year should belong to me, and that of the ensuing years should belong to you, and that the right of each of us should be dependent upon the pledges given by the tenant. Nerva and Proculus hold that unless the pledges are sufficient to secure the rent due to both vendor and purchaser, the right to all the pledges first belongs to me, because nothing has been clearly stated as to whether or not the sums shall be divided pro rata with reference to all the pledges, and if there is any surplus remaining after the first year it will belong to you. Paulus says this is a question of fact, but it is probable that the intention of the parties was that the right in the pledges should follow the first rent that is due.

14The Same, On Plautius, Book XIV. If anyone, who is not the owner, should pledge the same property to two persons at different times, the first one is entitled to the preference; although where we receive a pledge from different parties who are not the owners, the position of the possessor of said property is the better one.

15The Same, On the Edict, Book LXVIII. A building erected upon the ground of another can be given in pledge, in such a way, however, that the claim of the owner of the ground shall be preferred, if the title to the same has not been transferred by him.

16Ad Dig. 20,4,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 247, Note 2.Paulus, Questions, Book III. Claudius Felix hypothecated the same tract of land to three different persons, first to Eutychiana, then to Turbo, and finally to a third creditor. Eutychiana having been sued by the third creditor, contended for her rights in court, and having been defeated did not appeal, while Turbo, who also lost his case before another judge, appealed. The question arose whether the third creditor, who had obtained a judgment against the first, should also defeat Turbo, or if she were removed from the case, whether Turbo ought to take preference over the third creditor. It is clear that when the third creditor pays the first one out of his own money, he will be subrogated to him to the amount which he paid. There were some authorities who held that, in this instance also, the third creditor should be entitled to the preference, but this does not seem to me to be at all just. For, suppose that the first creditor had brought an action against the third, and had been defeated by means of an exception, or in some other way, could the third creditor who had defeated the first avail himself of an exception on the ground of a judgment rendered against Turbo, who had lent the money in the second place? Or, on the other hand, if, after the first decision by which the first creditor had been defeated by the third, the second creditor should obtain a judgment in his favor against the third, could he avail himself of an exception, on the ground of a decision rendered, against the first creditor? By no means, in my opinion; and therefore the third creditor is not subrogated to the first whom he defeated, for where a matter has been decided between two parties, it can neither benefit nor injure a third, but his entire right remains unimpaired to the second creditor, without any prejudice resulting to the first decree.

17The Same, Opinions, Book VI. Where anyone purchases land which has been encumbered by the debtor to another, he should be protected only to the extent to which the proceeds of the sale have come into the hands of the first creditor.

18Scævola, Opinions, Book I. Lucius Titius lent money at interest and received pledges, and Mævius lent money to the same debtor on the same pledges. I ask whether Titius should not be preferred, not only so far as the principal and the interest which accrued before Mævius made his loan are concerned, but also with respect to that which subsequently accrued. The answer was that Lucius Titius was entitled to the preference with reference to all that was due to him.

19The Same, Opinions, Book V. A woman gave a tract of land, which had been pledged as dowry to her husband, and by her will she appointed, as heirs, her husband and her children by him and by a former husband. The creditor, although he could have brought suit against the heirs, who were solvent, had recourse to the land. I ask whether, if a lawful possessor should tender him the amount of the debt, he would be compelled to transfer to him his rights of action. The answer is that what was asked does not seem to be unjust.

20Tryphoninus, Disputations, Book VIII. The question arose if, after you had made a contract with a party and before you lent him any more money, Seius should lend the same debtor fifty aurei, and the debtor should encumber to him the property to an amount exceeding the value of what had been pledged to you, and then you should lend to the same creditor, for instance, forty aurei, which was the excess of the value of the property which you lent in the first place; would the surplus of the pledge be liable to him for the fifty aurei, or to you for the forty which you lent? Suppose that Seius was ready to tender you the amount loaned in the first place. I held that the result would be that Seius would be preferred with reference to the surplus value of the pledge, and if the sum lent in the first place, together with the interest, was tendered by him, he would be preferred to the first creditor, so far as the amount which he had subsequently lent to the same debtor is concerned.

21Scævola, Digest, Book XXVII. Ad Dig. 20,4,21 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 246, Note 2.Titius hypothecated to Seia all the property which he possessed or might subsequently acquire, on account of a judgment that had been rendered against him for a sum of money which he owed because of his guardianship. Afterwards, having borrowed money from the Treasury, he encumbered all his property to it, and paid Seia a portion of what was due to her, and promised to pay her the remainder after having renewed the obligation; and as before, an agreement was made concerning pledges. The question arose whether Seia should be preferred to the Treasury both with reference to the property which Titius had at the time of the first obligation, as well as to that which he had acquired after said obligation was contracted, until his entire indebtedness was discharged. The answer was that there was nothing in what was stated to prevent her from being preferred. 1Ad Dig. 20,4,21,1ROHGE, Bd. 6 (1872), S. 281: Pfandrecht des Vermiethers an den eingebrachten zum Verkaufe bestimmten Waaren des Miethers. Zeitweise und dauernde Bestimmung der Verwendung.A creditor made a loan to a dealer in marble on a pledge of tombstones, the price of which had been paid to the vendors out of the money furnished by the creditors. The debtor was the lessee of certain warehouses belonging to the Emperor, and, as the rent for the same had not been paid for some years, the officer charged with its collection proceeded to sell the tombstones. The question arose whether the creditor had a right to retain them on account of the pledge. The answer was that, in accordance with the facts stated, he had that right.