Concurring Opinion.
Egan, J.The lessor has for the payment of his rent and other obligations of the lease a right of pledge on the movable effects of the lessee which are found on the property leased. C. C. 2705. This gives the lessor a preference right of payment out of the proceeds of such movable effects and also the right to take the effects themselves and retain them till he is paid. C. C. 3218. While he has this right to retain the thing itself, he also has a preference right of payment out of its proceeds which entitles him to be preferred before other creditors owing to the nature of his debt. This comes fully within the definition of privilege given in the law. C. C. 3186. The lessor’s privilege is classed in the Code among the debts which are privileged upon certain movables. C. C. 3216. And again : “ The privilege of the lessor is enforced on the property subject to it in the manner described in the title of loase.” C. C. 3219. |In the Code of Practice it is spoken of as a “lien,” which in common intendment answers to the definition of privilege given in the Code. The lessor’s rights are treated of under the head of privileges in the Civil Code, and the order of payment with reference to the other creditors and privileges regulated under that head, C. C. 3258 and 3259, and while he has under the law more than a privilege, a right of pledge, he has no less than a privilege as defined in the law and as frequently-*481held by the courts. It is in general essential to the contract of pledge that the creditor be put in possession of the thing given to him in' pledge; that actual delivery of it be made to him. C. C. 3152. By a fiction of the law the possession of the lessee on the premises of the lessor is considered for the purposes of this peculiar pledge that of the lessor. It is this right of pledge only which is treated of under the title of “Lease ” in the Civil Code. “In the exercise of this right the lessor may seize, the .objects which , are subject to it before thó’lessee .takes them away, or within fifteen days after they are taken away, if they continue to be'the property of the lessee and can be identified.” C. C. 2709. He may seize, even in the hands of a third person, such furniture as was in the house leased if the same has 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. C. P., art. 288. It will be perceived from these provisions of the law that this extraordinary right given to the lessor can only be exercised while the property subject to it is on the leased premises, or within fifteen days after removal, and not even within that time if the lessee has sold the property. This right is “ stricti juris,” and can not be extended to other conditions or for a longer time. It is absolutely at an end after the lapse of fifteen days from the removal of the property. It is this right which our predecessors held to exist independent of registry. This is the only view in which these decisions can be reconciled with article 123 of the constitution of Louisiana, which abolishes tacit mortgages and privileges, and provides that “no mortgage or privilege shall hereafter affect third parties unless recorded in the parish where the property to be affected is situated,” and with the statutes passed in pursuance of that article. See Civil Code, 3273 and 3274, to the same effect.
This article of the constitution, in my opinion, declares a new policy,, the want of which had long been felt in this State, a policy which the courts should not and can not contravene, and which requires registry of all privileges, without distinction or exception, in order that they may affect third persons. It is asked how can it be known what property is subject to a recorded lessor’s privilege; how can it be identified ? To this it may be answered, that the same difficulties exist in regard to the privilege of the laborer, the overseer, the furnisher of supplies, and many other privileges, the necessity and effect of the registry of which is daily recognized by the courts and required bylaw. The plaintiff in the case at bar has not preserved his privilege against third persons by such registry, and his right must yield to that of the second lessor, the third opponent, in whose premises the property was seized under the fieri facias, unless it is preserved by his provisional seizure, issued within fifteen days after its removal from his premises. Had he thought prop'er, *482he could have retained the effects of the lessee, under .article 3218 of the Civil Code, until he could have obtained a decree of court for their sale without resort to a provisional seizure, the effect of which was to take them out of his custody into that of the law, to place them- “in custodiam legis,” and to give the defendant the right to resume possession by executing bond.. Of course it must be assumed that plaintiff contemplated this, for such was ■ the' law, of which the defendant availed himself by giving the required bond, and continuing his business-as merchant in the house of the third opponent until the seizure under fieri facias, which gave rise to the present litigation, and which took place some months after that under the provisional seizure. Now it has been often held that a provisional seizure, a mere conservatory writ, like a sequestration, gives no privilege: That springs only from the law and the nature of the debt. Neither does the dissolution of the writ and the release of the property on- bond destroy the privilege. See steamer Fashion’s case, 10 An. 49. This is not a question of “ destruction” of privilege, but of its preservation or not as against third persons. ■ ■ ,¡
The only cases in which the pendency of suit operates notice to the world, so that no adverse right can be acquired, are suits for property; for some specific thing, which is the subject of the litigation, or when it is in legal custody. -
. In England, but never in this State, it has been held to apply to a mere suit to enforce a mortgage, but there a mortgage vests in the.mortgagee the legal title, while the equity of redemption alone remains in the mortgageor. With us a mortgage is a mere security, a mere incumbrance upon the property, while the legal title still remains in the -mortgageor, and our courts have nevep extended to them the doctrine, of notice from the pendency of suit, which does not even prevent the mortgage perempting, unless reinscribed. In my opinion, and under the authority of the repeated decisions of this court “in consimili casu,” no intervention would have been entertained in this case from the moment the property was released on bond. -From that moment it was no longer “ in custor «diam legis,” and any clainiant must have pursued it where he found it. From that moment the bond stood in the place of the property to secure the rights' of the plaintiff and to answer his judgment, unless relieved by its voluntary restoration. Any other view would be at war with the policy which favors the right of alienation, and is especially of the class of‘property seized in this case; and under any other view the giving of bond for the release of the property would be motiveless, and wholly without advantage to the defendant. The plaintiff has the security of ■the bond of release, given in this case — to which the third opponent can not look for his protection — and might well be. held to look to his bond under the equitable doctrine invoked by the counsel for the third oppo? *483nent. But under the views before- expressed, the plaintiffs right of pledge had expired by the lapse of more than fifteen days from the removal of the property before the seizure under fieri facias. His right of privilege was lost, as to third persons, for want of registry, and his right derived from the seizure under fieri facias must yield to the superior right of the third opponent, in whose premises the property was found by the sheriff, and who resorted to the mode pointed out by law to protect and assert that right.
It is said, however, that he had not recorded his lease, and is in no better position than plaintiff. This might be true, had he not opposed the plaintiff’s seizure while the property was still on the premises, and affected by all his rights as lessor, subject to which the plaintiff had a right to seize and sell the property of his judgment debtor. By the third opponent interposing the shield of the law directly in the path of the plaintiff who quoad this proceeding is a party and not a third person the plaintiff necessarily occupies as to the third opponent and his rights a very different position from that occupied by the third opponent as to the original suit and provisional seizure of plaintiff, to which he was no party. Two articles of the Code of Practice authorize release bonds in cases of provisional seizure.' The first, 287, applies solely to rent seizures, the second, 289, applies to all provisional seizures. This has been sufficiently discussed, and whatever might be the effect of the bond given under article 287, it is onl^ fiéc'essáry for me to say that both the plaintiff and defendant evidently treated the bond in this case as given under article 289, and for an amount fixed by the judge, which was nteithler that of the claim with interest and costs, nor equal to the value of the property as certained in the manner provided in article 287, i. e., by the sheriff, with-' the assistance of two appraisers. To argue, then, that article 287 alone-authorizes release bonds under provisional seizures for rent, is to argue-that plaintiff, upon whose rule and contradictorily with whom the bond - in this case was given, has no judicial bond for his protection. I do -not, however, subscribe to this view. The bond was given and taken under order of court, is to be interpreted by the law as to its obligations, and the plaintiff is entitled to its benefits which it is presumed are ample for his protection, as it was taken for an increased amount on his application, and he accepted the surety by not objecting to him as insufficient.
I concur in most of the reasoning and in the decree in this case.