Marcianus, On the Hypothecary Formula. The Divine Severus and Antoninus, however, stated in a Rescript that the pledge will be binding without affecting the rent of the land.

Marcianus, On the Hypothecary Formula. We must understand the same rules to apply to a son under paternal control.

The Same, On the Hypothecary Formula. Where a debtor has paid the money, he can make use of the action on pledge to recover property given in ἀντίχρησιν, for as there is a pledge he can make use of this term.

Marcianus, On the Hypothecary Formula. Ad Dig. 20,1,5 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 225, Note 6.It must be remembered that property can be hypothecated for any kind of an obligation whatsoever where money is lent, a dowry bestowed, a purchase or sale made, a leasing and hiring concluded, or a mandate given; also where the obligation is absolute, or where it is for a certain time, or under some condition, or where it is assumed in pursuance of an agreement, or to secure a present indebtedness, or one previously contracted. Property can also be hypothecated on account of an obligation to be contracted hereafter, it can be done not only to secure the payment of an entire sum of money but also only a portion of the same, and it is also available in civil or prætorian obligations, as well as in those which are merely natural. Hypothecation in a conditional obligation is not binding, however, unless the condition is complied with. 1The difference between a pledge and an hypothecation is only one of words. 2A party can hypothecate property not only for an obligation of his own, but also for that of another.

Marcianus, On the Hypothecary Formula. Where he who has charge of property belonging to the government borrows money for it, he can encumber the property. 1Where an agreement is entered into that the use of whatever is pledged can be made by the creditor, and some one is placed in charge of the land or of the house, he can retain possession of the same instead of the pledge, until the money is paid to him; since he can take the profits instead of interest, either by leasing them, or by himself collecting them, or by occupying the premises. Hence, if he should lose possession of the property, it is customary to make use of an action in factum. 2Ad Dig. 20,1,11,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 205, Note 4; Bd. I, § 239, Note 2.The question arose whether an usufruct can be given by way of pledge or mortgage, if the owner of the property agrees to this, or only he who is entitled to the usufruct gives his consent? Papinianus, in the Eleventh Book of Opinions, says “that the creditor must be protected, and if the proprietor desires to institute proceedings against him to prevent his using the right of usufruct against his consent, the Prætor will protect him by an exception, if it had not been agreed between the creditor and the party to whom the usufruct belonged, that the usufruct should be pledged; for as the Prætor protects the purchaser of the usufruct, why should he not also protect the creditor?” On the same principle, an exception can be filed against the debtor. 3Ad Dig. 20,1,11,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 227, Note 10.The servitudes of urban estates cannot be given in pledge, and therefore an agreement cannot be made for their hypothecation.

Ad Dig. 20,1,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 8.Marcianus, On the Hypothecary Formula. Where a flock is liable by way of pledge, any future increase of the same will also be liable. If, however, the entire flock should be renewed through the death of those previously pledged, it will still be liable as pledged. 1A slave who is to be free conditionally can be pledged, although the right to the pledge, as security, will be extinguished as soon as the condition is fulfilled. 2Ad Dig. 20,1,13,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 239, Note 16.As it is held that property in pledge can also be encumbered by the creditor, so long as both debts are due the pledge will be bound to the second creditor, and an exception as well as an equitable action should be granted him. If, however, the owner should pay the debt, the pledge will also be released. It may be doubted, however, whether or not an equitable action should be granted to the creditor on the ground that money has been paid. For what if the obligation has been discharged? What Pomponius wrote in the Seventh Book of the Edict is correct, namely, that if he who gave the property in pledge owes money, after it has been collected he should pay his own creditor with it. If, however, he owed some article, and delivered it, it should remain with the second creditor by way of pledge. 3Ad Dig. 20,1,13,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 239, Note 2.A creditor can lawfully claim whatever stands upon the surface of the land, against any possessor whomsoever; whether a mere informal agreement with reference to its encumbrance was entered into, or whether possession of it was delivered which was subsequently lost. 4Ad Dig. 20,1,13,4ROHGE, Bd. 11 (1874), Nr. 27, S. 69: Natur der Judicatsklage. Unveränderter Charakter des Anspruchs.Even if the creditor obtains a judgment against his debtor, the mortgage still continues to exist, because an hypothecary action has its own condition; that is to say, it remains effective where the money is not paid or security given. If I institute proceedings personally against the defender of an action, even though he may have given me security and lost his case, the hypothecation still remains in force. With much more reason, therefore, where proceedings are instituted personally either against the principal debtor, or against the surety, or against both together, even though judgment has been rendered against them, the hypothecary obligation still continues operative. By this it appears that the creditor has not been satisfied, because he has obtained a right of action on the judgment. 5Ad Dig. 20,1,13,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 13.Where property is conditionally encumbered on account of a debt, it must be held that proceedings cannot properly be brought before the condition has been fulfilled; since nothing is owing in the meantime. But where the condition upon which the debt is dependent arrives, if it had been contracted under a condition, the party can then bring suit. If, however, the debt is due immediately, and the hypothecation was made under a condition, and the creditor has brought the hypothecary action before the condition was fulfilled, it is, indeed, true that the money has not been paid, but it would be unjust for the lien to be released. Therefore, a bond should be executed by order of the court, providing that if the condition is fulfilled and the money is not paid, the property hypothecated should be given up, if it is in existence. 6If the hypothecation was made to secure the interest also, the interest should be paid. We say that the same rule applies with reference to a penalty.

Marcianus, On the Hypothecary Formula. Where land which has been hypothecated is afterwards increased by an alluvial deposit, it is all liable. 1If property is hypothecated without the knowledge of the owner, and the latter afterwards ratifies the transaction, it must be held that what he ratified he intended to have a retroactive effect to the time of the agreement; but the wishes of those only will be observed who have a right to pledge the property. 2Where property is hypothecated, and its form is afterwards changed, an hypothecary action will still lie; just as where a house is hypothecated, and its site afterwards becomes a garden. The same rule applies where the agreement was made with reference to a vacant lot, and a house is subsequently built upon it; or where vines have been planted upon ground which was without them when it was hypothecated. 3The question is asked, where an action is brought for the recovery of a pledge, whether he who is sued is in possession of the property which is the subject of the action. For, if he is not in possession of it, and has not committed fraud to avoid being in possession, he should be discharged. If, however, he should be in possession, and either pays the debt, or surrenders the property, he should also be discharged, but if he does neither of these things, judgment should be rendered against him. Where he is willing to give it up, but cannot do so because it is not at hand, or is at a distance, or in a province, it is customary for security to be furnished, since, if the party should give security to deliver it, he will be discharged. But if he has ceased to hold possession through fraud, and though, having made every exertion, he is unable to deliver the property, judgment shall be rendered against him for the amount to which the plaintiff will swear in court, as in other real actions; for if judgment should be rendered against him for the amount that is due, of what advantage would a real action be, as he could recover the same amount by bringing a personal one? 4The judge should sometimes decide with reference to the profits obtained by the person from the property which is the subject of the action, and render judgment against him for the profits from the time that issue was joined. But what if the land should be of less value than the debt? For he could not decide anything with reference to the profits previously obtained, unless they were still in existence, and the property was not sufficient to satisfy the claim. 5The question is asked, “How can a creditor obtain for himself the property hypothecated which has been adjudged to him by a decree of court?” He cannot bring an action to recover its ownership, but he can bring an hypothecary action; and if he is met by the possessor with an exception on the ground that the case has already been decided, he can reply that “that decision is favorable to me.” 6Ad Dig. 20,1,16,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 235, Note 8.Where a debtor has had judgment rendered against him for a larger sum than the principal and interest together, because he refused to surrender the pledge; and if he only pays the amount of the debt, will the hypothecation be released? I do not approve of this, so far as it relates to the subtlety of the law and the authority of the opinion; for the entire obligation seems to be transferred to the decision, and hence the money is due; but I think it is more equitable for the hypothecation to be released, if the party only pays the amount which he actually owes. 7The property of another can be legally hypothecated under the condition that it will become the property of the debtor. 8Where two creditors enter into an agreement with reference to hypothecated property, the question arises to what extent has each one a lien on the same; whether for the entire amount of the debt, or for an equal portion with the other? It is the better opinion that each one has a lien on the pledge for the amount of the debt. But how would it be if both of them should institute proceedings against the possessor; will the property be encumbered for the amount due to each one, or for the entire amount, as if it was bound for the whole to each of them? It must be held that they can only bring an action for a portion, if the property was pledged separately to both of them on the same day. If, however, the understanding was that it should be encumbered to both of them at the same time, each of them can legally proceed with reference to the entire property; otherwise each one can only bring suit with reference to a share of it. 9A pledge or an hypothecation can be made as follows, “If the debt is not paid within a certain time, the creditor may hold possession of the property by the right of a purchaser, and an estimate of the value of the same must then be made at a just price.” In this instance the transaction is held to be a species of conditional sale. The Divine Severus and Antoninus stated this in a Rescript.

Marcianus, On the Hypothecary Formula. Pomponius, in the Fortieth Book of Various Extracts, said that, “Everything brought into a house by a lessee was pledged, not only for the rent but also for any deterioration of the property caused by neglect of the tenant, on account of which the owner would be entitled to an action on lease against him.”

Marcianus, On the Hypothecary Formula. Pomponius states, in the Thirteenth Book of Various Extracts, that if a lessee gives me a gratuitous lodging in a house which he has rented, any personal property brought there by me will not be considered to be tacitly pledged to the other of the house. 1He also says that it should be considered that a pledge can be brought in by the consent of the owner in such a way that it may be liable for a portion of the indebtedness. 2Where anyone becomes a surety, and his property has been given in pledge by the debtor for whom he became responsible, it is certainly understood by this act of giving security that he has, so to speak, directed his property to be liable for the debt. If, however, his property is hypothecated subsequently to his becoming surety, it will not be legally encumbered.

Marcianus, On the Hypothecary Formula. A ward cannot hypothecate property without the authority of his guardian. 1Where a son under paternal control, or a slave, encumbers property belonging to his peculium for another person, it must be said that the property is not liable even though he may have the free management of his peculium, just as such persons are not allowed to give away their peculium; for neither of them has unrestricted management of his property. This, however, involves a question of fact, as to how far each of them seems to have been permitted to manage his peculium. 2The Divine Pius stated in a Rescript addressed to Claudius Saturninus, that any property which a party cannot purchase because it is not an object of commerce, cannot be taken in pledge. But what if any one should receive by way of pledge land, the title to which is in litigation, would he be barred by an exception? Octavenus was of the opinion that an exception would be available even in a case of pledge. Scævola says, in the Third Book of Various Questions, that this is the method of procedure, as an exception is available wherever the property, the title to which is in dispute, is movable.

Marcianus, 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.

Marcianus, On the Hypothecary Formula. Where a second creditor, having paid the claim of the first, is subrogated to him, he can lawfully sell the pledge on account of the money which he has paid and lent. 1Ad Dig. 20,5,5,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 248, Note 27.Where a second creditor, or a surety, having paid the debt, receives the pledges given for the same, the debtor can properly tender him the amount paid, even though the pledges are held under the title of purchase.

Marcianus, On the Hypothecary Formula. Where a creditor sells a pledge, or land which has been hypothecated, under the condition that he shall have a right to refund the money and recover the pledge; can he do this if the debtor is ready to pay the money? Julianus states in the Eleventh Book of the Digest that the pledge, indeed, seems to have been regularly sold, but that the debtor can bring suit against the creditor to compel him to assign to him any rights of action which he may have. What Julianus says with reference to a pledge also applies to hypothecation. 1Ad Dig. 20,5,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 117, Note 6.It must be considered whether, where property hypothecated is sold, the debtor should be permitted to recover it by paying the money to the purchaser. If, in fact, it was sold under the condition that the purchase should be rescinded, if the money is refunded by the debtor within a certain time, and it is paid within that time, he can recover the hypothecated property. But if the time has elapsed, and this matter has not been arranged by agreement, the sale cannot be rescinded, unless the debtor is under twenty-five years of age, or is a ward, or is absent on public business, or some other cause exists on account of which relief is granted by the Edict. 2Ad Dig. 20,5,7,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 172a, Note 8.The question is asked, where an agreement has been exacted by the creditor that the debtor shall not be permitted to sell property which has been hypothecated or pledged, what the law is, and whether an agreement of this kind is void having been made contrary to law, and therefore the property can be sold. It is certain that the parties must abide by such an agreement, and that a sale made in violation of it will be void.

Marcianus, On the Hypothecary Formula. Property subject to hypothecation is released where the creditor either renounces his right, or agrees that he will not claim the money; unless it is alleged that an agreement has been made that the debt shall not be collected personally from the debtor. But what course should be pursued if another person happens to be in possession of the property hypothecated? Where, however, an agreement gives rise to a perpetual exception, it can also be said in this case that the party has renounced his right to the property hypothecated. 1If the creditor should consent not to demand the money within a year, it is understood that the agreement also applies to the property hypothecated. 2Where it is agreed between the parties that a surety shall be furnished instead of an hypothecation, and this is done, it will be held that satisfaction is given to the creditor, and that the lien on the property hypothecated is released. The case is different where the creditor sells his right to the claim and receives the money; for, in this instance, all the obligations remain unimpaired, because the money is received as the price of the claim, and not by way of payment. 3It is understood that the creditor has been satisfied if an oath has been tendered, and the party swears that the property was not hypothecated.

Marcianus, On the Hypothecary Formula. Just as property, as well as its usufruct, ceases to exist, so also is the right of pledge or hypothecation extinguished for the same reason. 1A creditor can agree that the property encumbered shall no longer be subject to pledge or hypothecation, and, therefore, if this agreement was made with the heir, it will also benefit him to whom the estate is delivered under the terms of the Trebellian Decree of the Senate. 2Where the agent of the debtor enters into an agreement of this kind with reference to his property, I do not think it can be doubted that the agreement will prejudice the creditor. And, also, if an agent, acting in his own behalf, appears for the creditor, and makes a contract, he will render the hypothecary action void to such an extent that I think it can be rightly held that, in this instance, the exception will prejudice the case of the principal. 3If it should be agreed between the parties that the undivided half of the property in question should cease to be liable by way of pledge, and any portion whatever of the land referred to should be claimed in an action against any possessor whomsoever, suit can only be brought for half of the same. 4Where several joint-owners of one piece of property pledge their undivided shares in the same, and the creditor agrees with one of them that his share shall not be hypothecated, and he afterwards brings suit for it, even if he with whom he made the agreement is in possession of the entire undivided tract of land, because the creditor made an agreement with reference to a portion of the same, he cannot be excluded from proceeding against the whole of it. 5Let us consider whether a son under paternal control or a slave who has the free management of his peculium can make an agreement with a debtor that property pledged shall be released, which property they received as being specially hypothecated. Or, since they cannot give away their peculium, are they also prohibited from agreeing that property pledged to them shall not be released? It must be held that they can make such an agreement, provided they received a consideration for doing so, just as if they had sold the property pledged. 6If the land which was encumbered is sold with the consent of the creditor, the latter cannot honestly claim that it is still liable for the debt, if the sale is effected; for if it is not concluded, the creditor will not be deprived of his rights, merely because he gave his consent that the property should be sold. 7It is superfluous to inquire whether a tract of land specially hypothecated was sold with the consent of the creditor, if the debtor had possession of the property at the time; unless it might happen that the debtor sold it with the permission of the creditor, and then afterwards redeemed it in good faith from the purchaser, or someone else to whom the property had passed by the right of succession; even if the debtor himself should have become the heir of the purchaser. Still, if the money was not paid, a suspicion of bad faith will arise, which will extend to the present time, so that the creditor will have a right to interpose a reply on the ground of fraud. 8Let us examine the following case. If Titius, who was a debtor, should sell property which was pledged to Mævius, with the consent of his creditor, or to someone else from whom Mævius purchased it, and afterwards Mævius should become the heir of Titius, and the creditor should proceed to collect the debt from him, what is the law? It would be unjust for the purchaser to be deprived of the property by the creditor, as he obtained it, not by the right of succession, but in another way. It can, however, be said that as Titius was guilty of bad faith in the matter, by preventing the creditor from collecting the money from the possessor, it is very unjust that he should be made game of in this manner. 9If, however, the land in the possession of Mævius should be encumbered by him to anyone whose claim had not yet been satisfied, an exception can then be properly interposed on the ground that the property was not sold with the consent of the creditor; for although the debtor was guilty of bad faith in not making payment, still, the second creditor, who received the property in pledge, should be preferred. 10It is the safer plan, however, where a debtor requests his creditor to permit him to sell the pledge in order that he may the more readily pay him, to compel the prospective purchaser to give an undertaking to pay the creditor the price of the property sold, to the amount of the debt. 11We should understand the term “sale,” in a general sense, so that if the creditor permits the debtor to bequeath the property pledged, what he has granted may be valid; and this must be understood in such a way that if the legacy should be rejected, the pledge will still remain in force. 12Where a debtor sells property, but has not yet delivered it, shall the creditor be prevented from bringing an action on the ground that the property still forms part of the possessions of the debtor; or, indeed, since he is liable to an action on purchase, is the right to the pledge extinguished? The latter is the better opinion. But what if the vendor has not received the price, and the purchaser is not ready to pay it? In this instance the same can be said. 13If, however, the creditor permitted the property to be sold, but the debtor gave it away; will he be barred by an exception? Or is this rather a question of fact, he having consented that the property should be sold, in order that the price having been paid, the transaction would be an advantage to him? In this instance, his consent should not prejudice him. But, if he gave the property by way of dowry, he will very properly be held to have sold it on account of the burdens of matrimony. On the other hand, if the creditor permitted him to give away the property, and the debtor sells it, the creditor will be barred from prosecuting his claim; unless it may be said that he permitted a gift to be made because the party to whom the property was given was a friend of the creditor. 14If the creditor gave his consent for the property to be sold for ten aurei, and the debtor should sell it for fifteen, it must be held that the creditor is not prevented from prosecuting his claim. On the other hand, there is no question that he sold it legally, if he obtained more by the transaction than the creditor permitted him to sell it for. 15The creditor will not be held to have given his consent if the debtor should sell the property with his knowledge; as he only suffered him to do so because he was aware that his right to the pledge would be preserved under all circumstances. If, however, he signed the bill of sale, he will be held to have given his consent, unless it is perfectly evident that he was deceived. This rule should also be observed where he gave his consent without signing any document. 16Where permission to sell was granted the debtor, and his heir sold the property, a question of fact may arise as to what was the intention of the creditor. It must be said that the sale was properly made, for these subtleties are not considered by the courts. 17Where a debtor having obtained permission to sell the property pledged ceases to be in possession of the same, and a new possessor sells it, will the right to the pledge continue to exist, just as if the creditor had personally given permission to the debtor? This is the better opinion, for if the creditor had given permission to the new possessor to sell the property, and had not given it to the debtor by whom it was hypothecated to him, it must be held that he will be barred by an exception. 18If, however, the creditor should consent for the property to be sold within a year, or within two years, and it should be sold after that time; the creditor will not be deprived of his right to the pledge. 19Where a creditor has availed himself of the hypothecary action, and has recovered damages from the possessor, and afterwards claims the debt from the debtor; I think that he can be barred by an exception on the ground of fraud.

Marcianus, On the Hypothecary Formula. It must be proved, before everything else, that it was agreed between the plaintiff and the debtor, that the property should be pledged or hypothecated. After the plaintiff has proved this, he must also establish the fact that the property belonged to the debtor at the time the pledge was agreed upon, or that the hypothecation was made with his consent.

Marcianus, On the Hypothecary Formula. The Decree of the Senate is not violated where the guardian of a ward pays the creditor of the father of the latter, in order that he may be subrogated to him.

The Same, On the Hypothecary Formula. If anyone purchases a slave, who has been hypothecated, under the condition that he will manumit him, the slave will be entitled to his freedom under the Constitution of the Divine Marcus, even though the vendor may have hypothecated all the property which he had then, or might acquire in the future. The same must be said if he buys a female slave on condition of not subjecting her to prostitution, and he prostitutes her.

Marcianus, On the Hypothecary Formula. When land is given in pledge, and possession is delivered, and the property has then been leased by the creditor, and it is agreed that he who encumbered it shall be considered as a tenant in the country, and as a lessee in the city, the creditor is considered to possess the property through the debtor who has leased it.

The Same, On the Hypothecary Formula. It is established that anyone placed in possession of the property of a debtor who is absent on public business can legally hold it until the debt is paid in full, if it appears that the debtor is fraudulently absent, under the pretense of attending to business for the State. Where, however, he is absent on public business, in good faith, and a creditor is placed in possession under a writ of execution, the proceeding is void, and hence he must relinquish possession of the property.

Marcianus, On the Hypothecary Formula. We understand a sum of money to be paid naturally, where it is counted out to the creditor. If, however, it is paid to another by his order, or to his creditor, or to someone who is about to become his debtor, or even to a person to whom he intends to donate it, he should be released from liability. The same rule will apply if the creditor ratifies a payment which has been made. Also, where the money is paid to a guardian, a curator, an agent, or any successor whomsoever, or to a slave who is a steward, this will be valid. If a release, for the purpose of extinguishing an hypothecation, is given by means of a stipulation or without it, the term “payment” cannot be adopted, but that of “satisfaction” may be.