(dissenting).
The lien of a lessor — his right of pledge - — is created by LSA-Civil Code, Articles 2705, 2706 and 2707.
The enforcement or the exercise of such right of pledge, on the other hand, is provided for by the following provisions:
“In the exercise of this right, the lessor may seize the objects, which are subject to it, before the lessee takes them away, or within fifteen days after *475they are taken away, if they continue to be the property of the lessee, and can be identified.” LSA-Civil Code, Article 2709.
“The lessor may seize, even in the hands of a third person, such furniture as was in the house leased, if the same have been removed by the lessee, provided he declare on oath that the same has been removed without his consent, within fifteen days previous to his suit being brought.” Code of Practice, Article 288. (Italics mine.)
Under these quoted provisions, as I appreciate them, the lessor may enforce or exercise his statutory lien (granted by the other articles mentioned above) by seizing the objects which are subject to it, provided that he makes the seizure while they are on the leased premises or within fifteen days after the lessee takes them away.
In the instant case the pledged objects were removed from the leased premises by the sheriff pursuant to a writ of fieri facias; they were not taken away by the lessee. They became in “custodia legis”, thereby rendering impossible an exercise of the lessor’s right of pledge by a seizure of them. For the lessor to make a seizure the enlistment of the services of the sheriff would have been necessary; and surely such official could not seize that which he already had in his custody.
As a consequence of the obstacle preventing an enforcement of the lessor’s lien the prescription of fifteen days (provided for in LSA-Civil Code Article 2709 and Code of Practice, Article 288) was, in my opinion, suspended. And the suspension endured to the day of sale, for the sheriff did not relinquish his custody of the property prior to that time. See Robinson v. McCay, 8 Mart.,N.S., 106.
Accordingly, and since the right of pledge involved herein was in no manner adversely affected, the third opposition of this lessor, filed prior to the sale and in which he claimed preferential payment from the proceeds, was timely.
I am of the belief that the judgment of the Court of Appeal is correct. Therefore, I respectfully dissent.