[MARCIANUS libro singulari ad formulam hypothecariam. ] §20.4.12.prCreditor qui prior hypothecam accepit siue possideat eam et alius uindicet hypothecaria actione, exceptio priori utilis est 'si non mihi ante pignori hypothecaeue nomine sit res obligata': siue alio possidente prior creditor uindicet hypothecaria actione et ille excipiat 'si non conuenit, ut sibi res sit obligata', hic in modum supra relatum replicabit.
[MARCIANUS in his single book on the hypothecary formula.] If the creditor who first received the hypothec is in possession of it, and another claims it by the hypothecary action, the exception 'unless the property was previously bound to me under the name of pledge or hypothec' is useful to the prior creditor; or, if another is in possession and the prior creditor claims it by the hypothecary action and the possessor pleads the exception 'unless it was agreed that the property should be bound to him', the prior creditor will reply in the manner mentioned above.
sed si cum alio possessore creditor secundus agat, recte aget et adiudicari ei poterit hypotheca, ut tamen prior cum eo agendo auferat ei rem.
But if the second creditor sues another possessor, he will sue rightly and the hypothec can be awarded to him, on the condition, however, that the prior creditor, by suing him, can take the property away from him.
§20.4.12.1Si quoniam non restituebat rem pigneratam possessor condemnatus ex praefatis modis litis aestimationem exsoluerit, an perinde secundo creditori teneatur, ac si soluta sit pecunia priori creditori, quaeritur.
If, because the possessor did not restore the pledged property, he has been condemned and paid the valuation of the suit according to the aforementioned methods, it is asked whether he is bound to the second creditor in the same way as if the money had been paid to the prior creditor.
et recte puto hoc admittendum esse.
And I think this should rightly be admitted.
§20.4.12.2Si primus, qui sine hypotheca credidit, post secundum, qui utrumque fecit, ipse hypothecam accepit, sine dubio posterior in hypotheca est: unde si in diem de hypotheca conuenit, dubium non est, quin potior sit, licet ante diem cum alio creditore pure de eadem re conuenit.
If the first creditor, who lent without a hypothec, subsequently to the second, who did both, himself received a hypothec, he is without doubt subsequent in the hypothec; hence if an agreement was made for a hypothec to take effect on a certain day, there is no doubt but that he is preferred, even though before that day an unconditional agreement was made regarding the same property with another creditor.
§20.4.12.3Si idem bis, id est ante secundum et post eum crediderit, in priore pecunia potior est secundo, in posteriore tertius est.
If the same person has lent twice, that is, before the second creditor and after him, he is preferred to the second as to the prior sum of money, but is third as to the subsequent sum.
§20.4.12.4Si tecum de hypotheca paciscatur debitor, deinde idem cum alio tua uoluntate, secundus potior erit: pecunia autem soluta secundo an rursus teneatur tibi, recte quaeritur.
If a debtor agrees with you concerning a hypothec, and then subsequently with another with your consent, the second creditor will be preferred; but it is rightly asked whether, when the money has been paid to the second, the property is again bound to you.
erit autem facti quaestio agitanda, quid inter eos actum sit, utrum, ut discedatur ab hypotheca in totum, prior concessit creditor alii obligari hypothecam, an ut ordo seruetur et prior creditor secundo loco constituatur.
However, a question of fact will have to be examined as to what was done between them: whether the prior creditor consented to the hypothec being bound to another so that he departed from the hypothec entirely, or so that the order should be preserved and the prior creditor should be placed in the second position.
§20.4.12.5Papinianus libro undecimo respondit, si prior creditor postea nouatione facta eadem pignora cum aliis accepit, in suum locum eum succedere: sed si secundus non offerat pecuniam, posse priorem uendere, ut primam tantum pecuniam expensam ferat, non etiam quam postea credidit, et quod superfluum ex anteriore credito accepit, hoc secundo restituat.
Papinianus answered in his eleventh book that if the prior creditor subsequently made a novation and received the same pledges with others, he succeeds into his own place; but if the second creditor does not offer the money, the prior creditor can sell so that he recovers only the first money expended, and not also that which he lent afterwards, and what surplus he received from the prior loan, he must restore to this second creditor.
§20.4.12.6Sciendum est secundo creditori rem teneri etiam inuito debitore tam in suum debitum quam in primi creditoris et in usuras suas et quas primo creditori soluit: sed tamen usurarum, quas creditori primo soluit, usuras non consequetur: non enim negotium alterius gessit, sed magis suum.
It must be known that the property is bound to the second creditor, even against the will of the debtor, both for his own debt and for that of the first creditor, as well as for his own interest and that which he paid to the first creditor; but nevertheless, he will not obtain interest on the interest which he paid to the first creditor; for he did not manage the business of another, but rather his own.
et ita Papinianus libro tertio responsorum scripsit, et uerum est.
And so Papinianus wrote in his third book of opinions, and this is true.
§20.4.12.7Si simpliciter conuenisset secundus creditor de hypotheca, ab omni possessore eam auferre poterit praeter priorem creditorem et qui ab eo emit.
If the second creditor had simply agreed regarding the hypothec, he will be able to take it away from any possessor except the prior creditor and one who bought it from him.
§20.4.12.8A Titio mutuatus pactus est cum illo, ut ei praedium suum pignori hypothecaeue esset: deinde mutuatus est pecuniam a Maeuio et pactus est cum eo, ut, si Titio desierit praedium teneri, ei teneatur: tertius deinde aliquis dat mutuam pecuniam tibi, ut Titio solueres, et paciscitur tecum, ut idem praedium ei pignori hypothecaeue sit et locum eius subeat: num hic medius tertio potior est, qui pactus est, ut Titio soluta pecunia impleatur condicio, et tertius de sua neglegentia queri debeat? sed tamen et hic tertius creditor secundo praeferendus est.
One who borrowed from Titius agreed with him that his land should be a pledge or hypothec to him; then he borrowed money from Maevius and agreed with him that if the land ceased to be bound to Titius, it should be bound to him; then some third person lends money to you, so that you might pay Titius, and agrees with you that the same land should be a pledge or hypothec to him and that he should succeed to his place. Is the intermediate creditor preferred here to the third, who agreed that upon payment of the money to Titius the condition should be fulfilled, and should the third creditor have to complain of his own negligence? But nevertheless, here too, the third creditor is to be preferred to the second.
§20.4.12.9Si tertius creditor pignora sua distrahi permittit ad hoc, ut priori pecunia soluta in aliud pignus priori succedat, successurum eum Papinianus libro undecimo responsorum scripsit.
If the third creditor permits his own pledges to be sold for this purpose, that upon payment of the money to the prior creditor he may succeed to the prior creditor in respect of another pledge, Papinianus wrote in his eleventh book of opinions that he will succeed.
et omnino secundus creditor nihil aliud iuris habet, nisi ut soluat priori et loco eius succedat.
And in general, the second creditor has no other right than to pay the prior creditor and succeed to his place.
§20.4.12.10Si priori hypotheca obligata sit, nihil uero de uenditione conuenerit, posterior uero de hypotheca uendenda conuenerit, uerius est priorem potiorem esse: nam et in pignore placet, si prior conuenerit de pignore, licet posteriori res tradatur, adhuc potiorem esse priorem.
If the hypothec was bound to the prior creditor, but nothing was agreed concerning the sale, and the subsequent creditor agreed concerning the sale of the hypothec, it is more correct that the prior is preferred; for in the case of a pledge too, it is accepted that if the prior agreed concerning the pledge, although the property is delivered to the subsequent, the prior is still preferred.