In the Civil Law. Mortgages in the civil law are of two kinds, conventional and legal. A conventional mortgage results from the direct act or covenant of the parties. A le gal mortgage arises by mere act of law.
A mortgage may be acquired in three ways.
First, with the consent of the debtor, by his agreement.
Second, without the owner's consent, by the quality and bare effect of the engage ment, the nature of which is such that the law has annexed to it the security of a mort gage.
Third, where a mortgage is acquired by the authority of justice : as where a credi tor who had no mortgage obtains a decree of condemnation in his favor.
When the creditor is put into possession of the thing, movable or immovable, he has a right to keep it until he is paid what is owing him ; and the debtor cannot turn the creditor out of possession, nor make use of his own thing without the consent of the creditor.
Effect of a mortgage. First, the creditor has a right to sell the thing pledged, whether the creditor has it in his possession or not. Under the French law, it was a right to have it sold. Cushing's Domat, p. 647.
Second, a right on the part of the creditor to follow the property, into whosoever hands it has come, whether movable or immovable.
Third, a preference of the first creditor to whom the property is mortgaged, and a right on his part to follow the property into the hands of the other creditors.
Fourth, the mortgage is a security for all the consequences of the original debt,_ as damages, interest, expenses in preserving, etc.
With respect to mortgages under the mod ern civil law of France and Louisiana, the distinction between movables and immova bles is important. Such a thing as a chattel mortgage is not recognized under either sys tem. "But some things movable in their na ture become immovable by destination under certain circumstances," as : animals intend ed for and used in the cultivation of a plan tation and placed on it by the owner for that purpose; though the animal cannot be mort gaged by itself, a mortgage of a plantation will cover the animals so attached to it; Howe, Stud. Civ. L. 76; Moussier v. Zunts, 14 La. Ann. 15. See LIEN ; PACT DE NON ALIENANDO.
See, generally, Domat, part I. lib. iii. tit. i.; Guyot, Rep. Univ. tit. Privilegium; Cush ing's Domat.