After these are admitted the mortgage creditors,68 without any distinction as to the nature of their mortgage, whether it be tacit or express, general or special, (although, with respect to this last, the authors do not agree) according to the anteriority and preference of their demands conformably with the rule which says, qui prior est tem- [182] pore potior est jure,69 Ll. 27. and 29. tit. 13. Part. 5. Rodriguez, ibid. Part. 2. art. 1. ú n. 23. al 43. Wherefore if two creditors contracted with the debtor at one and the same time, although on different instruments, neither can pretend to anteriority, but they are both to be paid pro rata, Salgado, ibid. Part. 2. cap. 4. á num. 132.70 al 165.

From this principle it follows, 1st, That if any one mortgaged his property in favor of another as for a sum due (por razon de credito), and shall not receive the money, and he afterwards mortgages it to a second person who does deliver him the money, this second creditor shall be preferred to the first, L. 27. tit. 13. P. 5. 2d, That there being, for instance, three mortgage creditors, the third shall be preferred to the second, if the money which he lent was made use of to pay the debt of the first, or if the first should cede or assign to the third his right of preference," the assignor of such right of preference, oc

the Order in Council of his Royal Highness the Prince Regent, of 8th June, 1816, set forth in the Appendix M. The provision of this Order in Council was considered, however, nothing more than one of limitation or prescription with respect to the time for preferring claims of privilege allowed by L. 28. tit. 13. P. 5. to creditors, as they were termed, of refaccion and supply; and as made to prevent the frauds and prejudices which might arise to mortgagees and others, from the indefinite periods in which this privilege was claimed.

Finally, the Order in Council of the 5th August, 1822, Appendix S. declared that, from and after its publication, all privilege or preference in favor of any article of supply furnished subsequent thereto, with the humane exception in favor of slaves, in regard to articles furnished, under judicial sanction, for their subsistence, clothing, medical attendance, and payment of managers and overseers, pending an action or process brought against their owners and proprietors, should, as matter of right, cease and determine. It may be also observed, that a similar humane provision has been engrafted on the colonial codes of some of the British West Indian islands having local legislatures; and that, by them, debts contracted by a proprietor or possessor of a sugar, cotton, or coffee plantation, or of slaves, not less than twenty in number, generally employed as a task gang, for food and clothing furnished for necessary subsistence, are made a prior lien on all the slaves belonging to such plantation or task gang (except as against the king), if sued for within twelve months after actual sale and delivery of the articles specified, and other formalities pointed out by the law on the subject be complied with. See, on this point, the Laws of Antigua, pub. lished under the direction of Anthony Browne, Esq., the agent of that island.

68 Palacios, properly, observes, that before these come creditors for rent of land, who must be preferred to other creditors of whatever quality or class they may be, in regard of the fruits or product of the land for the amount of rent due; and he adds, that there are two cases mentioned in L. 30. tit. 13. P. 5., in which some mortgage creditors are preferred to those spoken of in the text.

69 See the exception to the rule in L. 27. tit. 13. P. 5., in case of money agreed to be lent, being paid or delivered by the second mortgagee before that previously agreed to be advanced, and for which the first mortgage was executed, as stated post in the text. 70 Read 154.

71 This might lead to a first impression, that the doctrine of English equity, “that if a third mortgagee, who, at the time of his mortgage, had no notice of the second, purchases the first mortgage, both the first and third mortgages shall be paid out of the estate before any share of it can be appropriated to the second," was attributable to the Roman or civil law, notwithstanding my Lord Hardwicke, in his judgment in the case of Wortley

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cupying the place of the third mortgagee, L. 34. tit. 13. P. 5. Salgado, Lab. cred. Part. 3.72 § un á num. 59. al 73. 3d, Likewise, if any other person should pay the debt of the first mortgagee in the name of the mortgagor, he shall be preferred to all three, although he may

versus Bukhead, was pleased to state, "that this rule was founded on the particular constitution of the law of England; and that it could not happen in any other country but England, because the jurisdiction of law and equity was administered in Englaud in different courts, and created different kinds of rights in estates," &c. See Treatise on Equity, 2d vol. book 3. ch. 3. p. 304., and Mr. Fonblanque's note (e) there. The above impression appears to have been entertained by Dr. Browne, in his View of the Civil Law, 1st vol. book 2. note (17.) p. 209.; although he seems to ascribe, erroneously, to Mr. Fonblanque, what is said by Lord Hardwicke, in his judgment in the case before mentioned: but further consideration will induce an admission of the exclusive title of England to the questionable credit (see Mr. Christian's note (4) 2d vol. Blac. Com. p. 160. cap. 10.) of the establishment of such a rule. By the Spanish law, the third mortgagee acquires no other right than what strictly belonged to the first, whose right and preference he may have purchased, and the intermediate mortgagecs are not prejudiced by any act to which they were not parties, or did not consent. This also, it is conceived, will be found to be the extent to which the civil law has gone. (See Wood's Inst. Civ. Law, book 3. ch. 1. p. 223. subrogation or cession.) Law 34. tit. 13. P. 5., cited in the text, only says, that in such case, the third mortgagee shall have the right in the thing mortgaged which the first had; but it does not say that the third mortgagee shall be also paid the amount of a third mortgage to himself, in preference to the mortgage previously given to the second mortgagee: and the latter part of the law gives, expressly, to the second mortgagee, the right to stand in the place of the first mortgagee, even after the assignment to the third of the first mortgagee's right, on the repayment only by the second mortgagee to the third mortgagee, of the sum paid by the latter to the first mortgagee, not exceeding the amount that was due on the first mortgage. This explanation of the Spanish rule of law is founded upon the Law (34. tit. 13. P. 5.) cited in the text, and is fully supported by Salgado, Lab. Cred. Part. 3. cap. 13.; see particularly num. 33. 35, 36. 59, 60. 75. 79, 80, 81. 99. 103, 104. ibid. It may be permitted to observe in this place, that the doctrine of tacking, as known to British courts of equity, has not, however, the same claim to origi. nality as the rule of English equity before mentioned, but unequivocally proclaims its Roman parentage under the title of retentio, and has also been transplanted into Spanish jurisprudence. Law 22. tit. 13. P. 5., expressly recognizes this doctrine, and says that, if a man is indebted, on mortgage, to another, and should afterwards borrow more money from, or contract to the mortgagee another debt, personal, or not secured by mortgage, the mortgagor shall not redeem without payment of the latter debt, as well as that secured by mortgage; and adds, that this only holds as regards the mortgagor and his heirs, and will not affect a subsequent mortgagee or bona fide purchaser; in which case, such subsequent mortgagee or purchaser may redeem upon payment of the mortgage debt only. See L. 22. tit. 13. P. 5., cited; also Treatise on Equity, Mr. Fonblanque's note in 2d vol. book 3. ch. 1. § 9. p. 272.; also Powell on Mortgages, 1st vol. p. 315. The laws of the 16th title, 10th book, Nov. Rec., required the registry of all mortgages, in the mode and at the times thereby pointed out; and, as regards Trinidad, the proclamation of 5th February, 1814, and the Order in Council of 6th April, 1818, have since made ample and particular provisions respecting the execution, registry, &c., of all mortgages, contracts, deeds, &c., affecting real property and slaves in that island; both of which see in Appendix O. P.

By L. 10. tit. 13. P. 5., a mortgagor cannot grant a second mortgage without the knowledge and consent (sin sabiduria y sin mandado), of the first mortgagee, unless the mortgaged property should be worth the amount of both debts; otherwise, besides being obliged to give another or available mortgage to the second creditor, the mortgagor is guilty of fraud, or stellionate, and is liable to be punished at the discretion of the judge. In respect to England, by the 4th and 5th W. & M, if any person mortgages his estate, and does not previously inform the mortgagee, in writing, of a prior mortgage, or of any judgment or incumbrance which he has voluntarily brought upon the estate; the mortgagee shall hold the estate as an absolute purchaser, free from the equity of redemption of the mortgagor. See Mr. Christian's note (2), Blac. Com. p. 159. ch. 10., and the Act cited. 72 Add. cap. 13.

not be a mortgage creditor, provided that the first creditor whom he pays cede to him his right, Olea, de ces. jur. tit. 5. quæst. 1. á num. 15. al 18. 4th, That the mortgage creditor, with an instrument made by a public escribano,73 (de guarantiguia ó de tercio) is preferred to a creditor who has none; unless the second has a private instrument, written and signed with the hand of the debtor, and witnessed by three witnesses,74 L. 13. tit. 13. P. 5. [L. 13. tit. 13. P. 5.] Sulgado, ibid. Part. 2. cap. 21. n. 29. 5th, That if the first creditor consented to the mortgaged property being mortgaged in favor of a third person, the mortgage of the first is determined in favor of the latter, who is considered anterior with respect to the first; but he does not obtain any greater right to the prejudice of the intermediate creditors between him and the first mortgagee, Salgado, ibid. Part. 3. cap. 13. § un á num. 19. al 44. 6th, That if a creditor is mortgagee of entailed property, and of that which is not entailed, he ought to be paid. in the first place out of the latter, because the obligation of the former is subsidiary, Salgado, Part. 2. cap. 5. num. 16. and 17. 7th, That if the possessor of an entail hath redeemed an annuity, he enters into the place of the annuity creditor, Salgado, ibid. Part. 2. cap. 7. 8th, The first conditional creditor, having fulfilled [183] the condition, is preferred to him who hath not fulfilled it, L. 32. tit. 13. P. 5. [L. 32. tit. 13. P. 5.] 9th, That the mortgage executed by virtue of a power (mandato), does not refer back to the date of the power, as to the effect of being preferred to other mortgages executed before the date of the mortgage executed in virtue of such power, because the power of itself produces nothing, Salgado, ibid. Part. 1. cap. 30.75

The chirographical creditors (chirografarios) of the third class ought to be paid their demands pro rata, from the remnant of the property; L. 11. tit. 14. P. 5. [L. 11. tit. 14. P. 5;] Rodriguez, ibid. Part. 2. art. 3. num. 2. And it is to be observed, that L. 48. tit. 25. lib. 4. Rec. [L. 5. tit. 24. lib. 10. Nov. Rec.] considers as privileged the creditor who has a bond on stamped paper, in respect of him who has not.

To the third principle appertains, 1st, That the debtor, forming a concurso, is not obliged to pay the debts which, by reason of his insufficiency of property, remain unsatisfied, although he may afterwards attain to better fortune;76 in which respect, this proceeding

73 See L. 10. tit. 13. P. 5.

75 See note 60, p. 176. ante.

74 See Appendix O. and P.

76 The debtor, says Palacios, although he forms a concurso, is not thereby discharged from the payment of those debts which, for want of property or means, remain unsatis. fied. For, by the concurso, neither the natural nor civil obligation he is under to pay them is extinguished. Therefore, if the debtor should arrive at better fortune after the concurso, he shall be obliged to pay, out of his newly-acquired property, his creditors who are unsatisfied. The only thing which L. 3. tit. 15. P. 5, allows him, in this case, is the benefit of competency, which means aliment from his property so acquired, and even to this it offers an exception in two cases; that is to say, when he should have any office or employment by which to earn a livelihood, L. 15. tit. 10. P. 5. al fin; and when the

(juicio,) differs from the cession of property. 2d, That the property being already adjudged, sold (rematados), and the term expired, if a better bidder offers, he ought to be accepted, which is special in the proceeding of concurso, for the interest of the creditors and of the debtor, Salgado, ibid. Part 2. cap. 2.77 3d, That, as the property of the concurso is destined for the payment of the creditors, and the debtor cannot administer it, he is incapacitated from making any contract with respect to it, Salgado, ibid. Part. 1. cap. 14. n. 4. al 21. 4th, That, by this proceeding, the power is extinguished, which the debtor gave to another person to administer, pay, &c., Salgado, ibid. Part. 1. cap. 28. 5th, That, if the debtor, during this proceeding,78 should alien his property, or part of it, in fraud of his creditors, they may annul the alienation or transfer, within a year after they knew of it, except it was made in favor of a minor (huerfano,) who ought to be reimbursed for the price or value, Ll. 7 and 15.79 tit. 15. P. 5. [Ll. 7 and 15. tit. 15. P. 5.] 6th, But notwithstanding this, the debtor may renounce an inheritance or legacy, &c., because it is one thing to aliene, and another not to acquire, Salgado, ibid. Part. 2. cap. 24. num. 4. 5. 6. and 17. 7th, That if the property of the debtor should [184] not be sufficient to pay his debts, the sales which shall have been in contradiction (ú oposicion) of his creditors or their attorneys,80 within the year, may be set aside or annulled, L. 8. tit. 15. P. 5. [L. 8. tit. 15. P. 5.] 8th, That the debtor may pay whichever of his creditors he pleases, even in case of not having sufficient property, provided it be before he makes a cession of his property, or before a concurso of his creditors takes place; and if otherwise, they have a right to demand the return of what shall have been received by the person whom the debtor hath paid,81 L. 9. tit. 15. P. 5. [L. 9. tit. 15. P. 5.] 9th, That if creditors of a lower degree were paid in preference to those of a higher degree, the latter may demand or proceed against any of the former they may please, for the revocation of the payment, and recover the sum which such posterior creditors have received against the due order of payment, Salgado, Part. 3.

creditor or creditors unsatisfied, should be so poor as not to have wherewithal to support themselves; and the Learned Professor refers to Febrero (reformado) Lib. 3. cap. 2. § 3. n. 154. (not 161. as cited.) See also n. 153. and 155. ibid. and Lib. 3. cap. 3. § 1. n. 19. It is to be observed, that L. 15. tit. 10. p. 5. relates to a bankruptcy or distress occasioned by the demands of one copartner against another, and that the Learned Professor has incorporated an observation of Greg. Lop. Gl. 8. L. 15. tit. 10. P. 5. on the law itself, which will not be there found, as to the debtor having an office or employment, or he has taken it from Febrero (reformado), whom he cites. Both the laws cited in this note forbid the stripping the bankrupt of all his subsequently acquired property for the satisfaction of old unsatisfied claims, and require sufficient to be left him thercout for his support.

77 Numb. 12. et seq.

78 L. 7. tit. 15. P. 5. cited, says, after the debtor es condemnado en juicio.

79 There is no such law in tit. 15. P. 5.

80 Licet non constet aliter de participatione fraudis, says Greg. Lop. Gl. 1. L. 8. tit. 15. P. 5. cited.

81 This, observes Palacios, takes place in respect of creditors of equal right; for if it should not be so understood, this doctrine would be contrary to that laid down in the 8th, or following number of this section. See Greg. Lop. Gl. 3. L. 9. tit. 15. P. 5. cited.

cap. 14. án. 19. al 29. 10th, That releases or discharges by the debtor of debts due to him, in prejudice of his creditors, are not valid,82 L. 12. tit. 15. P. 5. [L. 12. tit. 15. P. 5.] 11th, That if, during the proceeding of concurso, the inability of the debtor to pay, appears manifestly, the creditors may have recourse to his sureties, Salgado, ibid. Part. 1. cap. 23.

82 When, observes Palacios, (as does also L. 12. tit. 15. P. 5. cited,) this is done fraudu. lently, and the debtors, in favor of whom the discharge is granted, are cognisant of the fraud, and the consideration or cause of their debt is onerous; for if it were lucrative, their knowledge of the fraud would not be necessary to render the release invalid, and he refers to L. 7. tit. 15. P. 5, and to Greg. Lop. Gl. (2. 3. 4. 5.) on Law 12. ibid.