Dissenting Opinion.
DeBlanc, J.On the eleventh of March, 1875, Charles A. Conrad brought suit against Joseph Patzelt, for $960, alleged to be due him for the lease of a store on Camp street, in the city of New Orleans.
*484On the same day, the eleventh of March, 1875, having been informed that defendant had partly removed and was then engaged in removing to another store the furniture and'effects subject to his rights as a lessor, plaintiff immediately applied for and obtained the provisional seizure of said furniture and effects, the most of which was yet in his (Conrad’s) store.
The provisional seizure thus made was released, first on a bond which was declared insufficient in amount, afterward on a bond'the amount of which was fixed by the lower court. From that date the property seized! was transferred to and remained in defendant’s possession until the third! of January, 1876.
Conrad obtained judgment against Patzelt, and, under a writ of fieri facias, issued out of said judgment, the property which had been provisionally seized and released on bond was again seized, advertised for sale, and sold on the third of January, 1876, for $1276 40, and, on the thirtieth of December, 1875, four days before the sale hereinbefore mentioned, and more than nine months after the provisional seizure by Conrad, James Jackson filed a third opposition, in which he prays for judgment against Patzelt for four hundred and fifty dollars, which he alleged was then due him, and for the additional sum of thirteen hundred and fifty dollars to become thereafter due. In that opposition he claims to-be paid by preference to Conrad out of the proceeds of the sale of the property which had been seized and advertised for sale to satisfy the latter’s judgment.
On the third of April, 1876, Patzelt filed an exception, in which he contends that, as to a part of his claim, Jackson’s action was premature. His exception was not discussed and passed upon, and judgment was rendered against him in favor of Jackson, not merely for the rent due at the date of the institution of the latter’s suit, but also for the amount of the notes which matured since the suit and since the rendition of the judgment.
The evidence establishes that on the day of the trial of Jackson’s intervention, the twentieth of March, 1876, Patzelt was owing him for the rent of the store only six out of the eleven notes sued upon, and the judg-. ment should have been for exclusively the amount of the matured notes, nine hundred dollars, with interest, as thereon stipulated.
Article 287 of the Code of Practice provides that, “ when a lessor sues for rent, whether due or not due, he may obtain the provisional seizure of the property subject to his pledge.” This means that, under specified circumstances, the lessor may proceed to provisionally seize for rent due and to become due, but does not authorize a final judgment on an obligation, the consideration of which has not accrued and may never accrue.
It may be that Patzelt has retained possession of the premises leased *485from Jackson until the expiration of the lease, on the fiftéenth of September, 1876, and that he is bound for every one of the notes furnished to said Jackson, and which matured after the date of said judgment, but, so far as those notes are concerned, we can only reserve to both parties their rights of action and defense on and against the same. C. P. 158; 22 An. 50.
The questions which now remain to be examined are:
First — Was Conrad’s pledge, on the property provisionally seized by him, released by the effect of the forthcoming bond furnished by Patzelt ?
Second — Was Conrad bound to sue on exclusively that bond to enforce his rental claim ?
First — Under our Code, the lessor has more than a privilege on the lessee’s movables found in the house let. He has the absolute right, without writ or process, to .take and retain those movables until he is paid. R. C. C. 3218. In the exercise of that right he may seize the lessee’s effects before they are taken away, or within fifteen days after their removal. He may then seize, according to the Code of Practice, even in the hands of third persons, and, according to the Civil Code, he can seize after the removal, only when the removed effects continue to be the property of the lessee and can be identified. C. P. 288; R. C. C. 2709.
The apparent conflict between these articles of our Codes has been correctly explained. In the sixteenth Annual, page 351, this court held that the term “ third person ” in the 288th article of the Code of Practice applies to depositaries, bailees, pledgees, and all other persons, except purchasers.
Why is the provisional seizure allowed to the lessor ? In the clear and positive language of the law, it is allowed that the lessor may not he deprived of his pledge. Is it not evident, then, that the sole object of the provisional seizure is to preserve and not to destroy the lessor’s right; is it not as evident that the sole effect of the forthcoming bond is to release but the provisional seizure ? Adopt any other construction, and what would be the result? The evidence of one of the highest rights granted by the law, protected and enforced by every court, would invariably destroy the pledge which secures that right, and the once favored creditor would invariably be left with an action on the bond. That construction is repugnant to the intent and to the very letter of the law.
The lessee has an absolute right to give bond and release the seizure; he can do so without the consent and against the will of the lessor, but -that bond can not, does not, lessen, impair, or destroy the pre-existing pledge, that pledge which springs, not from the seizure, but from the law. As soon as the bond furnished by the lessee is accepted, the seizure falls, but the right of pledge preceded, and it survives the seizure. 22 An. 210; 23 An. 707.
*486The lessor’s right is not granted by any article to be found in the chapter of the Civil Code which treats of privileges. There it is classed, not as a privilege, but among the claims to be paid by preference; there we-read that enactment, pregnant with but one signification, that the lessor’s right is of a higher nature than a mere privilege. The right itself is granted by the 2705th article of said Code; it is called a'pledge, and, as a pawn, that pledge invests the creditor with the right of .causing his debt to be satisfied by privilege and in preference to the other creditors of the debtor out of the proceeds of the movables on which it bears. R. C. C. 3157,
Let us assume, in disregard of the law, that the lessor’s right is but a. privilege, and that, as Conrad’s lease was not recorded, it remains without effect as to third persons. Would that strained construction avail or benefit Jackson? Has he been more vigilant than Conrad? Is h,e claiming under a recorded lease ? The first and last seizure by Cpnrad were- made before he had any legal notice, by registry or otherwise, of the existence of a lease between Jackson and Patzelt, and, under the assumed construction, the privilege resulting from Conrad’s last seizure would outrank that of opponent.
It may.be urged that, as the lessee’s possession is that of the lessor from the time the furniture and effects went into Jackson’s store, they were held by. Patzelt for Jackson. If we divide that preposition, it “is a true, a correct one. When one leases his house or his farm, the lessee’s possession of that house and that farm, the title to which is in the lessor, is, can, and'should be but the lessor’s possession; but, applied to the lessee’s possession of his own effects and. furniture, that proposition is unfounded in fact, untenable in law, as then the lessor’s right is on and not in and to the property.
So far as relates to the property which had been provisionally seized' by Conrad, was ever Jackson a pledgee ? Has he at' any time had either a real or constructive possession of that property ? Was it delivered to -him as a lessor, to Patzelt as the owner, and free from incumbrance? It was merely left in the latter’s possession as a keeper, with Conrad’s right resting on it, unchanged, unimpaired, indestructible.
The lessor’s pledge, as the pawn, secures a debt; but the first secures but one claim, that of the lessor, the other secures any claim, whatever may be its nature. Those pledges are alike in some respects, different in others. That of the lessor leaves the thing in the lessee’s possession; the other does not and can not exist without actual delivery to and possession by the creditor. To have effect against- third persons, the act which evidences a pawn must be recorded; tíie lessor’s pledge, without being recorded, preserves its effects against fill. 23 An. 453; 24 An. 143; 2 An. 14.
*487• In his “ Oontrat de Louage ” Pothier says : “ Si le locataire d’une maison a l’insu du locateur envers qui il est redevable du loyer et autres obligations de son bail, a transportó ses effets dans une autre maison qu’il a prise a loyer, le premier locateur a droit de les suivre dans cette maison, et doit etre p.rófóré au nouveau locateur, et non pas venir en concurrence avec lui.”
The lessor’s is an extraordinary, an exceptional pledge. It bears on the effects which are on the leased premises at the commencement, and those which are found there at the expiration of the lease.' It so bears' when the effects have been removed, during fifteen days from the.removal, and if within that delay they are provisionally seized by the lessor, his pledge remains attached to them as long as they are not sold, in whose-soever hands they may pass, and until his claim is discharged. Otherwise the provisional seizure, though intended to preserve that pledge, would leave it in the power of every lessee to defeat and’destroy it.
Were we to consider the lessor’s pledge as the most ordinary one, is not the pledgee protected by law against the removal of the things which secure his right ? Is not that removal a fraud, an unlawful act, denounced by the Code, and in express terms, as a sort of theft ? Can that fraud, that violation of a contract and of the law, blot out an existing right and confer on any one, after the lessor’s seizure, an adverse right? I believe not. C. C. 3173; 2 An. 14; 16 An. 351.
When he furnishes his release bond, the lessee becomes the keeper of. the property released; he holds it for the sheriff, who held it fob the lessor, and no adverse possession, except of a bona fide vendee, -.can intervene or be acquired thereon. That keeper’s obligation is to retain, preserve, and return the property.' He might part with -it, but,.not legally. His lessor, and, beyond a doubt, the sureties on his bond, could prevent any disposal of the released property to their detriment. Patzelt and Jackson so understood, for every article of furniture, every effect Which had been provisionally seized, remained-in the former’s possession, in the latter’s,store, until, under Conrad’s judgment, they were identified, levied upon, and sold. 1
The lessee, whose effects have been provisionally seized, can have the. seizure released by executing, not at his choice, one of two distinct bonds, but only one bond, a. forthcoming bond, which, and this at his choice, may b.e for an amount equal to the value .of the property to be left in his possession, or equal to the amount of the lessor’s claim.
What' is the paramount obligation of the principal and sureties on a forthcoming bond ? The name alone indicates the character of that obligation. . Which ever of the aforesaid conditions they may adopt, “the principal and his sureties bind themselves to return the' released property; that is their first, their paramount obligation. If they fail to return *488it, they are bound to account for its value; that is their secondary obligation.
The bond furnished by Patzelt does not correspond in form to that referred to in the articles of the Code of Practice. He and his sureties merely bound themselves to pay any judgment that may be rendered in favor of Conrad; the condition, “ or return the property” was omitted, but that omission does not relieve them from the effect of a legal obligation, one which must be construed with reference to the law under which it was given.
Taken and considered alone, the law of 1868, now embodied in the 287th article of the Code of Practice, is vague and incomplete. It merely provides that a forthcoming bond may be executed, but not to whom it is to be made payable, nor under what circumstances it would be forfeited. These unexpressed conditions we find in article 289 of the same ■Code: “ When vessels or other property provisionally seized are released on bond, the condition of that bond is that defendant shall satisfy such judgment as may be rendered against him, or return the property.” In this case the judgment rendered in favor of Conrad has not been satisfied, the bonded property has been returned and sold to satisfy said judgment. Under what principle of either justice or equity could the sureties on that bond be now held liable ?
Second — The lessor is not restricted by law, and he can not be justly restricted by the court, to a suit on exclusively the forthcoming bond. He can not be compelled to thus abandon a reality for a chance, to exchange pledged property, or the proceeds of that property, for an action •on one of those obligations, the payment of which is always resisted, alwavs delayed, to renounce an acquired priority, a i%ht of preference, for additional trouble, additional litigation.
Th.e third opponent tells C.onrad, the first lessor, “leave me the funds realized by the sale made' under your writ and sue on the bond.” To that proposition of the second lessor Conrad answers: “ That bond is no longer in existence; those who furnished it, principal and sureties, have ■complied with its conditions and their obligations; they have returned the released property and that property has been sold. By that return and that sale the bond is now a lifeless obligation, which can be enforced by nor against any of the parties.”
We unhesitatingly acknowledge the justice of the doctrine invoked by opponent’s counsel, that when two funds of a common debtor are available to one of his creditors, and a single one of these funds to another, the former will be restrained from exhausting the fund which is the only resource of the latter; but that doctrine does not apply to this case, as here there is but one fund to be distributed, and the creditor with a pledge can not be condemned to renounce that only fund for an already satisfied bond, an extinguished obligation.
*489At what date did Jackson’s pledge as a lessor attach, if it ever did, to Patzelt’s furniture and effects ? On the fifteenth of March, 1875, four days after Conrad’s provisional seizure, a seizure partly executed in Jackson’s store. He was then, by that seizure, notified of the existence, nature, and extent of Conrad’s claim, and l'eásed at his peril.
It is apprehended that our construction of the law, !as to the lessor’s pledge, is calculated to take by surprise and deceive second and subsequent lessors/: Eor how long, if at all ? At most fifteen days, in cases of fraudulent - removals — never, when the first 'lessor ..has proceeded against the lessee. During ..that very short and very reasonable delay, and no longer, under the specified circumstances, and none else, imprudent lessors may be exposed to the effects of a previous right, acquired under a previous contract.
When we compare to the unimportant and trifling loss of a rent of fifteen days the serious and important loss which may befall the first lessor, we can but consider that not only the imperative letter of the law, but the interest of. all lessors, command the discouragement of any violation of a previous lease.
• As to Jackson, he would in vain attempt to prove that he was taken by surprise; he was more effectually informed by the suit and the seizure of Conrad of the extent and nature of the iatter’s right than he would have been by any recordation of the lease. In 3 An. p. 252, the court said:
“It is rule of universal jurisprudence, and one which has been expressly recognized in our Code, that every man is presumed to be attentive to what passes in the courts of the State where he resides or has transactions. A'purchase therefore, of an estáte,'"pendente lite, even for a valuable consideration, and without any express or implied notice in point of fact,-, affects the purchaser in the same manner as if he had such notice, and he will accordingly be bound by the decree rendered in the suit.”
In the case of the Bishop of Winchester, referred to in the same book, the question being whether subsequent mortgagees were bound by the decree of foreclosure, though not made parties, their rights having been acquired pendente lite; Sir William Grant held that—
“ Ordinarily the decree of the court binds only the parties to the suit; but he who purchases during the pendency of the suit' is bound by the decree which may be rendered against the person from whom he derives title. The litigating parties are exempted from the necessity of taking any notice of a title so acquired, and a mortgage, and, of course, a privilege taken or acquired pendente lite, can not be exempted from the operation of that rule.”
In the case of Long vs. French, Justice Eustis said: “ The defendant, *490after the institution of this suit, made a sale of the property in litigation, and has urged this fact as a matter of defense. - This is sub4 versive of the first principles of justice, ¡and ohly-receive's our notice for the purpose of expressing,-as we feel ourselves bound to do, our reprobation of it. This act, On - the part ¡Of - defendant; shows a settled determination to sport with á contract,- and to defeat, at'All hazards, every effort which-his adversary-may make to obtain his just rights from the tribunals of-'his'-cofihtry-.'-'It'is to-be regretted that*parties will not understand'that in-conddct like-this they can receive neither áid'nbr countenance f tow a.-court of'justice. 13 La. R. p. 259;
In the case of Gillespie et al. vs. Cammack et al. Mr. Justice Slidell said;' “Thóupritt’ciple'¡Which defeats 'conveyances filade'pendeúte lité applies a fortiori to incumbrances.” 3 An. 252.
In the case; of' Taylor vs. Pipes, reported in 24 An. 557, Chief Justice Ludeliñg,! iff his /dissenting ¡opinion,' said:- “If Taylor, the' purchaser of mortgaged property; ¡be entitled to notice as a third possessor, his vendee, in case.he'should-s'ell'péíicíeníe life, would, also1 be entitled to the same notice, and plaintiff would discover that he had' a legal right with4 out a practical or'rea-l'-reniedyF''-''In-'support-of his opinion,-the judge referredito 4 La. p. 558; Story on Equity, vol. 1, p. 394; 1 John. Ch. R. 576.
■ How can a rule of universal' jurisprudence be divided and subdivided, be made. to. apply to a whole and not to a fraction of that'wholé, to the principal and not to the accessory, to. a right in and not to a right on the property ?• Can one' incumber to’the detriment-of An acquired right that which he is expressly forbidden' to ■ sell to its detriment ? - If one sells pendente lite; and judgment-be- tendered in favor .of his opponent, his sale is to be considered as that of another’s: property,, and is no. obstacle to the execution .of the judgment; ■ Can a presumed pledge on the property carry a different, a'-moreSextended right, .than an absolute transfer ?
If judicial process is so insignificant a -notice that, though enforced in your store, in your presence, it does not even suggest the existence of a right, then, with the assiStance<'of''a'few'friends,'litigation,'by timely and successive1 transfers and-VihcumbraneeSj might easily be transmitted from one generation to another.
In my opinion, Conrad’s process left on the .-articles provisionally seized a brand .w-hich no one should be allowed to disregard^--that of the law, a notice which no one should pretend to ignore, that Of- his pledge! The law-would be an unfaithful sentinel if, while a1 right is placed under its immediate guard, it opens the door to another, a subsequent, an op? posite. right, .'.one born, only .'after the execution of the process which secured and protects the first; still more, the law would be a treacherous sentinel, if it not only opens the door to the posthumous-right, ,but actually assists in the destruction of- that confided to its guard.
*491The act of lease relied upon by Jackson, and his own declaration in court, fully establish that said lease commenced on the fifteenth of March, 1875. It was only from that date that he could have acquired any rights on Patzelt’s effects, and, at that date, Conrad had-already claimed and partly executed the very same right against the same lessee. It can not be that, despite his diligent course, his strict compliance with the law, he has forfeited and lost the indisputable rank of his acknowledged-claim.
I consider, however, that the judgment of the lower court should be amended in so far as it allows against Patzelt the whole of Jackson’s claim, instead of the amount due him at the institution of his suit, and in so fax’, also, as it dismisses Jackson’s opposition. The property subject to the two lessors’ pledge was sold for more than the amount of Conrad’s claim, and any balance that may remain after the satisfaction of said claim should be applied to Jackson’s judgment.
Eor the reasons stated, I can not concur in the opinion of my associates.
Spencer, J. I concur in the opinion delivered by Justice De Blanc.