[GAIUS libro singulari de formula hypothecaria. ] §20.4.11.prPotior est in pignore, qui prius credidit pecuniam et accepit hypothecam, quamuis cum alio ante conuenerat, ut, si ab eo pecuniam acceperit; sit res obligata, licet ab hoc postea accepit: poterat enim, licet ante conuenit, non accipere ab eo pecuniam.
[GAIUS in his single book on the hypothecary formula.] The person who first lent money and received the hypothec is preferred in the pledge, even though an agreement had been made with another beforehand that, if he should receive money from him, the property should be bound, although he subsequently received it from this latter; for, although he had agreed beforehand, he might not have received the money from him.
§20.4.11.1Uideamus, an idem dicendum sit, si sub condicione stipulatione facta hypotheca data sit, qua pendente alius credidit pure et accepit eandem hypothecam, tunc deinde prioris stipulationis exsistat condicio, ut potior sit qui postea credidisset.
Let us see whether the same should be said if a hypothec was given after a stipulation was made under a condition, and while this was pending, another person lent money unconditionally and received the same hypothec, and then subsequently the condition of the prior stipulation was fulfilled; namely, whether he who lent money afterwards should be preferred.
sed uereor, num hic aliud sit dicendum: cum enim semel condicio exstitit, perinde habetur, ac si illo tempore, quo stipulatio interposita est, sine condicione facta esset.
But I fear that a different view must be taken here; for once the condition has been fulfilled, it is treated just as if it had been made without condition at the time when the stipulation was entered into.
quod et melius est.
And this is the better view.
§20.4.11.2Si colonus conuenit, ut inducta in fundum illata ibi nata pignori essent, et antequam inducat, alii rem hypothecae nomine obligauerit, tunc deinde eam in fundum induxerit, potior erit, qui specialiter pure accepit, quia non ex conuentione priori obligatur, sed ex eo quod inducta res est, quod posterius factum est.
If a tenant farmer agreed that what was brought in, carried in, or born on the land should be pledged, and before he brought them in, he bound the property to another by way of hypothec, and then subsequently brought it onto the land, the person who received it specifically and unconditionally will be preferred; because the property is not bound by the prior agreement, but by the fact that the property was brought in, which occurred later.
§20.4.11.3Si de futura re conuenerit, ut hypothecae sit, sicuti est de partu, hoc quaeritur, an ancilla conuentionis tempore in bonis fuit debitoris: et in fructibus, si conuenit ut sint pignori, aeque quaeritur, an fundus uel ius utendi fruendi conuentionis tempore fuerit debitoris.
If an agreement has been made regarding a future thing, so that it should be a hypothec, as is the case with offspring, it is asked whether the female slave was in the estate of the debtor at the time of the agreement; and in the case of fruits, if it is agreed that they should be pledged, it is likewise asked whether the land or the usufruct belonged to the debtor at the time of the agreement.
§20.4.11.4Si paratus est posterior creditor priori creditori soluere quod ei debetur, uidendum est, an competat ei hypothecaria actio nolente priore creditore pecuniam accipere.
If a subsequent creditor is prepared to pay the prior creditor what is owed to him, it must be considered whether the hypothecary action is available to him when the prior creditor is unwilling to accept the money.
et dicimus priori creditori inutilem esse actionem, cum per eum fiat, ne ei pecunia soluatur.
And we say that the action is useless to the prior creditor, since it is due to him that the money is not paid to him.