inhabitant, knowing that injury may result from the ruin of any old work, may warn the owner of it, who shall cause it to be recorded with the superintendants (maestros of works," and to be demolished, if they declare that it threatens ruin or to give security for any injury that may happen therefrom to any eighbor; and the owner complying with neither of these requisites the work shall be given into the possession of the neighbor, by the ader of the judge, in order that he may repair it at the cost of the owner, L. 10. tit. 32. P. 3. [L. 10. tit. 32. P. 3.] 4th, That this regulation, (providencia,) does not take place with respect to the ruin whith proceeds from a supernatural cause; and if the building be destroyed before the neighbor hath preferred his complaint; but even in this case, the owner ought to remove the stones and other materials which shall have fallen on the house of his neighbor, Ll. 10. and 11. tit. 32. P. 3. [Ll. 10. and 11. tit. 32. P. 3.] 5th, That if several are joint owners of a building, and any one of them should rebuld it in his own name, and of his partners, with their approbation, they ought to indemnify him for the expenses within four months; and not doing so, the whole of the building shall be his exclusive property; but if the work was done without the permission of his co-proprietors, or in bad faith, (á mala fe,) he shall forfeit or lose what he hath laid out; and the building or work shall be the common property of all, L. 26. tit. 32. P. 3. [L. 26. tit. 32. P. 3.]

40 Palacios (nota 2) says, there is no law which imposes this obligation on the owner, although he is obliged to repair the building or to pull it down if it is in danger of falling into ruin; or if he should not, the judge will order what is directed by L. 10. tit. 32. P. 3., according to the state of the building; and the learned Professor refers to this law for a proper explanation of this part of the text, and to nota 5. tit. 20. lib. 7. Nov. Rec., which sce.

139

TITLE VII.

OF PLEDGES, MORTGAGES, AND RENT CHARGES, OR ANNUITIES

(CENSOS).

THE fourth right in the thing is pledge (prenda) or mort- [149] gage, (hipoteca.) We commonly distinguish the one from the other, because the pledge (prendu) is of personal things,' and the mortgage (hipoteca) of real property, which is not delivered to the creditor. Under either term we understand all that which one person pledges or binds (empeña) to another for the security of the debt which he contracts, L. 1. tit. 13. P. 5. [L 1. tit. 13. P. 5.]

§ 1. The hipoteca is divided into general and particular, or special. The general comprehends all the real and personal property of the debtor or mortgagor, had and to be acquired, which may be freely mortgaged, with the exception of the things which serve in [150] his house for daily use, and are necessary for his support, (para vivir,) L. 5. tit. 15. P. 5.3 [L. 5. tit. 13. P. 5.] The particular, or special, only comprehends that which shall be expressed, in which case, it is necessary to specify or describe the thing mortgaged, so that it may be known with certainty, L. 6. tit. 13. P. 5. ad fin. [L. 6. tit. 13. P. 5.] Mortgage (hipoteca) is also delivered into voluntary, The first is that which persons enter into necessary, and tacit. among themselves of their own accord, mortgaging their property one to another, on account of something they ought to give or to do, L. 1. tit. 13. P. 5. [L. 1. tit. 13. P. 5.]

The second is, that which the judges shall order to be delivered to any of the parties in litigation on the property of his adversary for want of answer, or on account of contumacy or judgment that is given with respect to it, or in order to fulfil the order of the king, L. 1. tit. 13. P. 5. [L. 1. tit. 13. P.

5.]

The third is, that which is contracted silently, although nothing be said about it,5 L. 1. tit. 13. P. 5. [L. 1. tit. 13. P. 5.] Of this last kind are, 1st, The mortgage which the husband has upon the pro

1 L. 1. tit. 13. P. 5. cited, defines peño as synonymous with prenda, pignus, a thing which a man pledges (empeña) to another, by delivering to him possession of it; and chiefly consists of a thing, or property, movable or personal; but in a large sense, is extended to things or property immovable or real, unaccompanied with delivery of posSee Wood's Inst. Civ. Law, Book 3. ch. 2. p. 219., and 1. Browne's Civ. Law, session. p. 201. Book 2. ch. 4.

2 In other words, present and future property, of what nature or kind soever, with the exceptions which follow in the text.

3 See the exception enumerated in this law.

4 Or judicial. See the words of L. 1. tit. 13. P. 3. cited.

B Called tacit.

perty of the wife, or of the person who promised to endow her," (dotarla,) L. 23. tit. 13. P. 5. [L. 23. tit. 13. P. 5.] 2d, That which the wife acquires upon the property of the husband, by reason of the dote which she delivered to him, L. 23. tit. 13. P. 5. [L. 23. tit. 13. P. 5.] 3d, That which minors have on the property of their guardians, L. 23. tit. 13. P. 5. [L. 23. tit. 13. P. 6.] 4th, That which the king has on the property of those who manage or collect his royal revenue, (hacienda,) Ll. 23. and 25. tit. 13. P. 5. [Ll. 23. and 25. tit. 13. P. 5.] 5th, That which the children have on the property of the father, who is the administrator of their adventitious property, L. 24. tit. 13. P. 5. [L. 24. tit. 13. P. 5.] 6th, That which the children of the first marriage have upon the property of the mother, by reason of the arras, or the donations given by their father to her, which she carries into the second marriage, L. 26. tit. 13. P. 5. [L. 26. tit. 13. P5 7th, That which the legatee has on the property of the testator, L. 26. tit. 13. P. 5. [L. 26. tit. 13. P. 5.] 8th, That which the minor has on his own property, which may be sold until the price be paid him, L. 25. tit. 13. P. 5. [L. 25. tit. 13. P. 5.] 9th, That which any one has, who lends another a certain sum upon the thing for the benefit of which it is destined,10 L. 26. tit. 13. P. 5.

§ 2. The mortgage ought to be given or executed by the mortgagor and mortgagee being present, although the thing or property mortgaged itself need not: but it may be also entered into or executed among persons absent by power of attorney, with or without public deed or instrument of writing (escritura publica),11 L. 6. tit. 13. P. 5. [L. 6. tit. 13. P. 5.]; and with various conditions which be not contrary to law,12 L. 12. tit. 13. P. 5. [L. 12. tit. 13. P. 5.]

[151] Every mortgage (hipoteca) therefore is, 1st, A right in the thing constituted for the security of the sum due. 2d, It is to be considered a species of alienation (enagenacion). 3d, The creditor may sell13 the pledge (prenda) unless he be paid the debt, L. 41. tit. 13. P. 5. [L. 41. tit. 13. P. 5.]

6 For the amount, and until payment of the dote, is understood. See L. 1. tit. 13. P. 5. 7 The Law 23 tit. 13. P. 5., cited, says, which he received with her.

8 And for the payment of tributes or taxes, &c.

9 For the value and payment of his legacy.

10 e. g. the repair, or building of a ship, house, &c. And see L. 28. tit. 13. p. 5.

11 In respect of Trinidad, the form, execution, and registry, &c. of all conveyances, deeds, mortgages, or contracts, regarding real property in that island, are regulated by the Proclamation of 5th February, 1814, and the Order in Council of 6th April, 1818. See Appendix O. and P.

12 The covenant, or condition, that if the money borrowed should not be repaid by the mortgagor at the time agreed on, the mortgaged property shall be forfeited, or become the mortgagee's, for the amount advanced by the latter, is contrary to law, or invalid. But it is permitted to covenant, that on failure of payment of the debt at the time, the mortgagee may purchase, or have the mortgaged property at a fair valuation to be made by good men (homes buenos;) it being of course understood, that the difference, if the value should exceed the debt, shall be repaid to the mortgagor. See L. 12. tit. 13. P. 5. cited; and L. 41. tit. 5. P. 5.

13 This, it is apprehended, must in all cases be under regular judicial process and authority. The power of sale, on default of payment of the debt, is incident to, or rather

From the first principle we infer, 1st, That in order to acquire a right in the thing mortgaged, it is necessary that the mortgage creditor proceed with good faith, because, if he knows that the property or dominion is not in the mortgagor it will not remain obligated to such creditor, L. 7. tit. 13. P. 5. [L. 7. tit. 13. P. 5.] 2d, That in the voluntary or conventional mortgage (prenda) possession of the mortgagee is not necessary to create or establish the obligation, but it is otherwise with respect to the necessary or judicial mortgage,14 L. 13. tit. 13. P. 5. [L. 13. tit. 13. P. 5.] 3d, That the creditor may require from the debtor and his heirs delivery (entrega)15 of the thing mortgaged, L. 14. tit. 13. P.5. [L.14. tit. 13. P.5.] 4th, That if the thing which is obligated be transferred to another by the owner, before being delivered to the creditor, he may proceed against the debtor, not molesting the possessor if he be satisfied or paid, but not being so, he will have his action to recover the thing mortgaged from him who may possess it; unless this transfer has been made after the creditor has sued the debtor, for then it is at his discretion or option to sue the debtor or the possessor of the thing mortgaged, L. 14. tit. 13. P. 5. [L. 14. tit. 13. P. 5.] 5th, That the change of situation or state of the thing mortgaged, as might happen by pulling down a house, or cultivating land, which was uncultivated, &c., does not alter the obligation of the mortgage, L. 15. tit. 13. P. 5. [L. 15. tit. 13. P. 5.] 6th, That the improvement or augmentation which the thing mortgaged receives passes together with it to the creditor if he be not satisfied; but upon being paid, he must restore the thing mortgaged with all its increase and benefit, L. 15. tit. 13. P. 5. [L. 15. tit. 13. P. 5.] 7th, That with the thing mortgaged its fruits or produce are also considered obligated; and if the creditor received them he must discount or deduct their value or amount from the capital of the debt, Ll. 2. and 16. tit. 13.

16

inseparable from, a mortgage or pledge. See nota to the form of this obligation, p. 117. Part. 1. Cap. 7. § final; and p. 32. n. 34. § 4. 2d vol. Febr. adic. Also L. 1. tit. 19. Fuero Real, Lib. 3. L. 42. tit. 28. Part. 5. and Ferraris prompta Bibliotheca, tit. Hipotheca, 4th vol. p. 241. n. 41.

14 This must be understood of the prætorian mortgage, as asentamiento, the possession given by the judge to the plaintiff, of the defendant's property, to the amount or value of the former's demand, on account of the contumacy of the latter after citation on process; which forms the 8th Title of the 3d Partida, and the 5th Title, 11th Book, of the Novisima Rec. thereon: but which, according to Febrero, ad. vol. 2. part. 1. ch. 7. § 4. n. 56. p. 30., is not in use, although it is lawful, and may be resorted to; and which may, perhaps, be considered in the nature of a sequestration for contumacy, or may be understood of such right of possession as the plaintiff may be considered to have to the proceeds of the defendant's property, after levy thereon, in virtue of the writ of execution issued in satisfaction of the amount of his demand; and see Cur. Philip, lib. 2. Com. Ter. ch. Hipoteca, n. 35-37. p. 364.; and the Order in Council, 6th April, 1818, Appendix P.

15 See Greg. Lopez, Gl. 3. L. 14. tit. 13. Part. 5., cited in the text; and see 2d vol. Febr. ad. part. 1. ch. 7. § 4. p. 34. n. 67.; and note 13. ante. The word entegra, in Spanish legal language, often means levy made on property in virtue of an execution.

16 Palacios (nota 2.) says, unless the husband were the creditor, and should receive the fruits of the thing mortgaged as a security for the dote of wife, in which case, if he sus tains the burthens or charges of the marriage, he makes the fruits his own, so that he is not bound to discount their value from the capital: and that this is the opinion of Covarubias var. cap. 1. num. 3.; and of other interpreters.

P. 5. [Ll. 2. and 16. tit. 13. P. 5.] 8th, That although, in the conditional mortgage, or the payment of which is agreed to be at a day certain or fixed, the thing cannot be demanded until the condition be fulfilled, notwithstanding if a long absence of the debtor be apprehended, the creditor may require delivery of the thing or sureties to insure or become bound for (que aseguren) the mortgage or pledge, L. 17. tit. 13. P. 5. [L. 17. tit. 13. P. 5.] 9th, That the mortgage creditor has a right to assign to another the thing mortgaged to him; and upon the debt being paid, the second mortgagee will have no [152] right in the thing, but may require the assignor of the mortgage to renew the mortgage upon another thing of equal value, L. 35. tit. 13. P. 5. [L. 35. tit. 13. P. 5.] 10th, That the creditor cannot make use of the pledge or pawn (prenda) without the consent of the owner, and if he obtain it, then with due care, L. 20. tit. 13. P. 5. [L. 20. tit. 13. P. 5.] 11th, That if the thing mortgaged (empeñada), be lost or impaired by the fault of the creditor, he is bound to make good the injury, L. 20. tit. 13. P. 5. [L. 20. tit. 13. P. 5.] 13th, That this injury or damage must be discounted or deducted from the capital of the debt, L. 36. tit. 13. P. 5. [L. 36. tit. 13. P. 5.]

§ 3. From the nature and constitution of mortgage are equally deduced the modes by which it is extinguished, and they are, 1st, By the total ruin and extinction of the thing mortgaged, but not if any part of it should remain, L. 15. tit. 13. P. 5." [L. 15. tit. 13. P. 5.], 2d, By the satisfaction or payment of the sum due, in which case the creditor must restore the pledge (prenda), and not doing so, he shall be compelled thereto by the judge, as also to the payment of the damages (perjuicios) caused by the detention, Ll. 21. and 38. tit. 13. P. 5. [Ll. 21. and 38. tit. 13. P. 5.] 3d, If the second mortgagee shall pay the debt due to the first, he shall have possession of the pledge (prenda), L. 22. tit. 13. P. 5. [L. 22. tit. 13. P. 5.] 4th, The right of mortgage is extinguished if one or two who mortgaged the thing satisfies the debt, or pays it to the surety,18 Ll. 45. and 46. tit. 13. P. 5. [Ll. 45. and 46. tit. 13. P. 5.] 5th, By prescription; if for ten years, among persons present, and twenty among those absent, delivery of the thing mortgaged was not demanded from those in possession of it under a new mortgage or sale executed in their favor by the owner or mortgagor, unless the latter have received it, knowing the property was already mortgaged, for then thirty years are necessary to prescribe it; and if this delivery be not demanded

17 This law does not bear out the position of the text; but perhaps the authors had in mind L. 28. tit. 8. P. 5. See Merlini Trac. de Pig. & Hip. lib. 5. tit. 1. Quæst. 34. p. 602. n. 1, 2, &c.

18 Who paid the debt for the mortgagors.

19 Palacios observes, that the Law 39. tit. 13. P. 5., cited, does not say under a new mortgage, but by means of transfer (enagenacion), and that it is clear that, to aliene or transfer (enagenar), causes very different effects from to mortgage (hipotecar); mortgage or pledge, he adds, is not a competent cause or ground of transfer of dominion, nor, in consequence, of prescription, and refers to L. 1. tit. 11. lib. 2., Fuero Real, and L. 1. tit. 8 lib. 11. Nov. Rec.