Succession of Lanaux

46 La. Ann. 1036 | La. | 1894

Lead Opinion

The opinion of the court was delivered by

McEnery, J.

Pierre Lanaux, commission merchant and factor, died in the city of New Orleans, September 6, 1892. He was the agent for Mrs. E. Tassin, Octave Hymel, deceased, and J. R. and Seraphin Hymel. These parties entrusted their funds to Lanaux for investment without specifying and directing the mode of'investment. These funds were never, except in case of Mrs. Tassin, loaned to Lanaux, and he was never authorized to use them for his own purposes or in his business. The mandate, as shown by the witnesses and the correspondence between the parties, was to invest their funds. They were deposited by them with Lanaux for this purpose and none other. On the accounts current furnished these several parties, it was noted that the funds had been invested without saying in what particular manner.

A short time before his death, Lanaux, for the amounts which he had for investment for these parties, made up separate packages in separate envelopes in which were placed his individual notes for the amount due each, with bonds and certificates of stock, with the usual blank power of attorney to transfer, attached to them.

On each envelope or package was endorsed the name of the party to whom it belonged. They were placed in a bank box, and this box with the key was placed in the actual, corporeal possession of DeJahan, his clerk.

This box was, according to Lanaux’ instructions, placed in the branch depository of the State National Bank for security and safe keeping, through the intervention of G. A. Lanaux, who received the box from DeJahan. DeJahan was instructed and directed by Lanaux, to deliver on demand these packages to the persons to whom they were addressed.

He had exclusive control of the box containing these pledges and says he would have delivered them to the parties on demand. It is evident, from the testimony of DeJahan and G. A Lanaux, that DeJahan’s possession of the box was full and complete, and adverse to that of Lanaux.

Mrs. Tassin, who had instructed Lanaux in the same manner as the Hymels, as to the investment of her money, subsequently met Lanaux, to whom she loaned her money on the faith of the securities set apart for her, with the understanding that DeJahan was to be the depositary of the pledge. DeJahan after receiving these packages, informed Mrs. Tassin of his possession of the same for her benefit, and she accepted DeJahan as the depositary then, as she had previously signified her assent to do so, when she had the conversation with Lanaux, which resulted in the loaning of the money. This statement of the facts in relation to Mrs. Tassin brings her case directly under the textual provisions of Art. 3162 of the Civil Code and the interpretation placed upon the same by this Court. 42 An. 694; 38 An. 863; 33 An. 973; 32 An. 1250.

The fact that DeJahan was the clerk of Lanaux could not affect his capacity to act as a third party, chosen by the parties, to be the detainer of the thing pledged. There was no inconsistency in the two relations. Having accepted the trust, so far as it was concerned, he was a stranger to Lanaux, and in no way bound by his private relation to him to violate his obligation as a fiduciary and to surrender the pledge to him. And he so regarded it, as he says he would have delivered the packages on demand to the parties for whom they were intended.

Seraphin Hymel, J. R. Hymel and Octave Hymel were informed of the investment of their funds, either by Lanaux or DeJahan, although the testimony does not show that they were informed particularly as to the mode of investment. It is a fair inference, however, that they were so informed by Lanaux and DeJahan when they spoke to those parties, whom they had visited for the purpose of informing them as to the fulfilment of the trust imposed by them upon Lanaux. This is corroborated by the blank power of attorney which Seraphin Hymel refused to sign, the object of which was to remove and to deposit bonds, bills, stocks, notes, etc.

Taking all the evidence together, the impression made upon the mind is that the Hymels had knowledge of the pledging of these bonds, stocks, etc., for them, and that they accepted DeJahan as the custodian.

Seraphin Hymel’s reason for refusing to sign the power of attorney was that he thought his funds safely invested.

The power of attorney was admitted in evidence over the objection of opponents, but it was admissible to show in part that Seraphin Hymel knew that his funds had been investod in the manner shown by the inventory and the account and the disposition of his funds, and that he accepted DeJahan as the third party agreed on between'the parties to detain the pledge.

We see no good reason why the debtor can not place the thing pledged in the hands of a third party and inform the creditor of the fact, when, if he accepts the third party, the pledge becomes perfected. Such seems to be the doctrine indicated in Peters vs. Pacific Guano Co., 42 An. 694.

The succession of Lanaux could have no greater rights than the decedent. If he had lived would not the pledgees have had the right to claim the things pledged to them in the hands of DeJahan? If a demand had been made upon DeJahan for the pledges he could not have set up title in Lanaux, and Lanaux certainly was estopped from claiming the pledges.

In fact he had completely divested himself of possession of the notes, bonds and certificates of stock after DeJahan had accepted the pledges from him and had been accepted as the detainer of the pledges by the pledgees.

Any attempt of Lanaux to dispose of the things pledged in the hands of DeJahan could have been successfully resisted by the pledgees. Another view of the case is also fatal to the demand of opponents.

Conceding that there was no valid pledge of the property, the relations between Lanaux and the Hymels were not those of debtor and creditor. They never authorized Lanaux to use for his own purpose or in his business these funds. Their instructions to him, who was their servant and agent, were to invest their funds. They were informed that they had been invested, and it was so noted in the account current furnished the Hymels. Lanaux invested these funds in property, of which he was the owner, and placed the same in the hands of his clerk to be delivered on demand. The Hymels, on his death, found in his succession this property detained by Lanaux for them. This property was presumably purchased with their funds and separated from Lanaux’ property, and became their property. Beaty vs. McLeod, 11 An. 76.

It is the law that the Hymels, in order to secure the identical fund in the insolvent succession, must separate the fund from the mass of the succession and distinguish it. But it is also the law when trust funds have been specifically invested in property which can be identified the property must respond to the trust fund and stand in its stead. The Hymels therefore have the right to claim the specific property purchased with their funds by their servant and agent. Id.

It is contended by opponents that the notes were null and void because signed and endorsed by DeJahan, and that he had no written authority to sign and endorse them. The mandate to sign and endorse a promissory note must be express and special, but it need not be in writing. 21 An. 476.

DeJahan’s authority to sign and endorse the notes was express and special, although not in writing.

To perfect the pledge the delivery of the bonds, notes, etc., was sufficient. 35 An. 1171; C. C. 2158.

On October 8, 1891, S. Hymel deposited with Lanaux twenty-three thousand dollars. This deposit was for the purpose of meeting current expenses of his plantation. This sum is placed on the account as an ordinary debt. It is claimed by Hymel that this was a trust fund, and that the executor must turn it over to Hymel’s representatives before making a distribution of Lanaux’ assets among his creditors.

The fund has not been identified, nor has it been traced in its conversion into other property.

The depositor has no general privilege on the property of the agent. 25 An. 478; 31 An. 314.

It must therefore be rated as an ordinary debt against the succession fund.

The opposition to the claim of the Planters’ Fertilizing Company is not well founded. The proof is sufficient to sustain the claim. The District Judge was of this opinion and we see no reason to disturb his ruling.

Walton & Co. and Moran & Wood’s claim for a privilege for coal furnished the plantation was properly allowed, restricted as it was to coal furnished for making the crop of sugar on the several plantations.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to reverse that part of the decree sustaining the oppositions to the claims of Seraphin Hymel, Octave Hymel, Joseph R. Hymel, Mrs. F. E. Tassin, to be paid by preference and privilege out of certain notes and bonds, shares of stock, etc., pledged to them and mentioned in the inventory and on the account of the executor, and it is now ordered that the opposition to the same be dismissed and said claims be recognized as placed in the account. In all other respects the judgment is affirmed, the succession to pay all costs.

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Rehearing

On Application for Rehearing.

The opinion of the court was delivered by

Miller, J.

The question in this case is whether the appellants, the Successions of Seraphin Hymel, of Octave Hymel, Joseph R. Hymel, Mrs. Florian E. Tassin and Denis Lanaux, are pledge creditors of the late Pierre Lanaux. The account of the executor of the deceased recognized the pledges, and from the judgment of the lower court maintaining the oppositions of ordinary creditors of the deceased, and adjudging that the appellants were not pledge creditors, they prosecute this appeal. The case has been elaborately argued in the court, both on the original trial and on the rehearing, and has engaged our serious attention.

The full argument in this court has served to eliminate from consideration a mass of testimony contained in the voluminous record, well calculated to cloud the issue and mislead the court. At the outset, it may be stated, we regard the debts of the creditors asserting the pledges as established. The pecuniary condition of Pierre Lanaux is unimportant, as this is not the revocatory action. It is no consequence in this discussion that Pierre Lanaux, the deceased factor, had annually for years balances in his hands derived from the sale of the crops of the asserted pledge creditors; was accustomed to invest for them their balances, and all evidence tending to show that the asserted pledges were such investments, has no bearing on the controversy, the creditors claiming as pledgees, not as owners, for whom the securities had been bought by their agent. The claim of ownership, and at the same time as creditors, entitled to the bonds as pledgees would 'be inconsistent, besides admitting of no support under the facts, and the creditors properly elected in the lower court to stand on their asserted pledges.

The controversy is between the creditors asserting these pledges on a large amount of the securities of the debtor, and the mass of his creditors interested in disputing the pledges, so as to secure the application of all the debtor’s assets to the payment of his debts. The requisites of the pledge are well defined. The agreement consummated by delivery of the property pledged to the creditor, or the possession of the property by a third person, agreed on to hold for the creditor, are the essentials. There is no substantial difference between our Code and the general commercial law on the subject, and in one of the recent text books the articles of our Code are incorporated as expressing the commercial law. In this case there is no pretence of any delivery to the creditors. The claim of the asserted pledge creditors is the securities were placed in the possession of a third person to hold for them. Civil Code, Arts. 3133, 3152, 3162; Code Napoleon, Art. 2076; Jones on Pledges, Secs. 23, 27, 28, et seq.; Laurent Droit Civile, 28th Vol., p. 162, pars. 464, 470, 471, 484; 7 Boilleux Commentaire du Gage, p. 129.

The pledges are asserted to have been made in August, 1892. Pierre Lanaux, the debtor, died in September, about a month after. There was no intercourse between the debtor and Denis Lanaux, one of the alleged pledge creditors, having any reference to the pledge claimed for him. We draw the conclusion from the record that there was none with Seraphin Hymel, another alleged pledge creditor, leaving out of view the hearsay testimony of statements from him that his balance in the hands of the deceased factor was safe, or had been invested. With two others of the creditors claiming privilege, Octave Hymel and Joseph R. Hymel, there appears to have been intercourse prior to the time of the asserted pledges, from which these creditors derived the understanding, or were assured by the deceased factor, their balances in his hands would be or were invested, and their securities placed in the safe of the New Orleans Insurance Company, in the vault of the branch depository of the State National Bank in this city. The deceased factor was president of both institutions. With Mrs. Tassin, another of these creditors, the communications of the deceased factor were of a more special character. Her balance in his hands in July, 1892, was large, and she was solicitous to have it secured, i. e. invested in State bonds. He submitted to her his plan thus: He would make his note for forty thousand dollars, secure it by a pledge of State bonds and other securities, place note and securities in the hands of George DeJahan, his clerk, instruct him to put the note and securities in a bank box, in the safe of the New Orleans Insurance Company, in the vault of the branch bank, to which George Lanaux, the secretary, had sole access; at the same time he would instruct him to hold the box subject to the order of DeJahan, having the key of the box, and who would be directed to deliver the note and securities on her request. To this plan Mrs. Tassin assented.

With this review of the relations and intercourse of the deceased factor with his creditors, the next phase of this controversy is the method of execution of the asserted pledges. On the 3d of August, 1892, Mr. Lanaux directed his clerk, Mr. DeJahan, to make five notes; one for Mrs. Tassin for her balance of forty thousand dollars, one for thirty-one thousand dollars in favor of Octave Hymel, one for twenty-seven thousand five hundred dollars in favor of Seraphin Hymel, one in favor of J. R. Hymel for twenty-five thousand dollars, and another for ten thousand dollars in favor of Denis Lanaux; to attach to each note securities deemed adequate to secure it; to place notes and securities in five packages, each marked the property of the creditor for whom the contents were intended, and to put the sealed packages in a bank box, for which, Pierre Lanaux told his clerk, George Lanaux would call. All this was done, and De-Jahan, the clerk, was instructed to deliver the packages to the creditors. On the day previous, George Lanaux had been requested by Pierre Lanaux to put a bank box in the safe of the insurance company, adding that DeJahan would give the box. On the day following the making up of the packages and placing them in the box, it was taken from Pierre Lanaux’ office by DeJahan and George Lanaux, and deposited in the safe of the insurance company, in the vault of the branch bank. DeJahan had the key of the box, George Lanaux the combination to open the safe. Nothing was said by Pierre Lanaux, or by DeJahan, to George Lanaux in reference to the box, save the request from Pierre Lanaux to deposit it, and, of course, there was no syllable of reference to its contents. It bore the name of the deceased factor, and contained, besides the packages, his will appointing Denis Lanaux his executor. Not a single security was ever delivered from the box. It was untouched from the time it was placed in the safe at Pierre Lanaux’ request until his death, when it was opened under the order of the court to search for his will and inventory his property.

The claim of the creditors asserting pledges on the contents of the box, on the theory that the securities in their debtor’s bank box are to be deemed not in his possession, but in that of these creditors through a third person supposed to hold for them, is fortified, it is urged, by the directions of Pierre Lanaux to his clerk to deliver the packages, and by the fact that the directions at the request of Pierre Lanaux were communicated by his clerk to the creditors or some of them. The testimony on this branch of the case appears to be about this: the information was given to Octave Hymel and Joseph R. Hymel that their funds in the hands of the deceased factor had been invested for them, were in the safe of the insurance company, and, to use the language of the witness, they ratified the investments. The testimony of DeJahan on this point is in some degree conflicting, apt to occur in the testimony of any witness subjected to protracted examination and cross-examination as to details, but giving effect to all his testimony and that of others, it is our conclusion, his communications to Joseph R. and Octave Hymel may be epitomized in the reference by him to the investments in the safe of the company. To Mrs. Tassin, the communication of DeJahan was in effect, that all had been done with reference to the pledge as proposed to her by Pierre Lanaux, that is, the execution of the note placing the note and securities in the package marked for her; the package in the box, the box in the safe of the company, in the bank’s vault, his instructions to deliver to her, and DeJahan also stated that he and George Lanaux had accepted the commission confided to them by the deceased. This last statement conveyed the inference of the witness, but the fact is, George Lanaux, entirely ignorant of the contents of the box, had no such commission and had never even heard of it.

It is substantially on this state of facts this court is now called on to sustain pledges of securities in the debtor’s bank box, never taken from it till his death, and then by his executor. It is urged on us that the facts bring the asserted pledges within the essentials so plainly expressed in the Oode, that no pledge exists without actual delivery to the creditor or to a third person for him. The symbol of the pledge in the Roman law is the fist of the creditor closed on the pledge, denoting that actual possession which all recognize as linked to the pledge, and without which none can exist. We are, responding to the case of the creditors, to hold that these securities in Pierre Laneaux’ box in bank, directed to be delivered, but never taken from it, are, notwithstanding, to be deemed not in his possession, but in that of some third person for the creditors. If we are to reach any such conclusion, it must be on some theory of constructive possession not capable of easy appreciation.

We can hardly conceive, even on this theory urged on us of constructive possession, or constructive holding, how the cases of the Hymels and Denis Lanaux can be supported. The intercourse with Octave and Joseph R. Hymel with the deceased factor, and subsequently after his death with DeJahan,. that can be deemed to have the faintest relation to these securities, has been stated. It will not be pretended in that intercourse any one was agreed upon or suggested to bake possession of the securities for them, still less can it be maintained there was ever the shade of any such possession, unless packages in Lanaux’ box is to be deemed not in his, but in the possession of some other. With respect to Denis Lanaux and Seraphin Hymel, there was no intercourse with reference to the box or its contents. A day or two after the death of Mr. Pierre Lanaux, DeJahan spoke to Denis Lanaux of a letter in the box for him. That was all he ever heard of the box until the opening, under the order of the court, disclosed the package marked with his name. With Seraphin Hymel all intercourse or knowledge of box or contents is a blank. The claims of these, the Hymels and Denis Lanaux, may at once be laid aside. There is no pretence of delivery to them of the asserted pledges. It would do violence to the record were we to maintain that there was ever the selection of any third person to hold the securities for them, and still greater violence, if we held there was the shadow of any such possession.

Is the case of Mrs. Tassin any stronger ? The actual custody of the box containing the securities when Lanaux died is susceptible of no dispute. Whether George Lanaux, who received it from Pierre Lanaux nor the company nor the bank in whose vault the box was placed, is deemed custodian, is immaterial. Oould the possession of any one of them be deemed that of Mrs. Tassin ? Neither George Lanaux, or the company or the bank had the slightest intimation of her non-asserted interest in the contents of the box. With the fact that must be conceded, that the box, was thus received and thus held, it is plain that no other relation of ownership or accountability grew out of the deposit of the box other than that arising daily when the customer sends his box to the bank. It must be apparent then, that George Lanaux held this box for Pierre Lanaux, and in no sense for Mrs. Tassin, whose asserted pledge rests on the theory of her possession, actual or constructive of the securities claimed by her in that box. The fact that George Lanaux received the box from, and held it for Pierre Lanaux, must be accepted and exert its influence in the solution of the vital issue as to the possession of these securities.

Whatever qualifications may be claimed to arise from the previous negotiation between Mr. Lanaux and Mrs. Tassin in reference to the asserted pledge, or from the fact that subsequent to the negotiation he placed the package of securities bearing her name in the box, or from the additional circumstances that the clerk of the debtor with the key of the box had his instructions, never fulfilled, to deliver to her the package, and that these instructions at the request of the debtor had been communicated to her, still, whatever the force, if any, of these qualifications, or of any other the record exhibits, the unalterable fact remains that when the death of the debtor occurred which fixes the rights of all creditors as they exist at that moment* the securities now claimed to have been in the possession of a third pei’son agreed on to hold for the creditor asserting the pledge were in the debtor’s bank box deposited as his property. There is in this branch of the case another impressive feature. When Pierre Lanaux unfolded his plan to secure Mrs. Tassin the payment of the large balance in his hands, along with the placing the note in her favor and the package of securities bearing her name n the box, and along with the instructions for delivery to his clerk, and the deposit of the box, it was part of that plan that George Lanaux receiving the box, was to be instructed to hold the box subject to the order of the clerk. If these instructions hadbeengiven and accepted, as doubtless they would have been, by George Lanaux, the-case of Mrs. Tassin would at least in this respect have presented a different aspect. There would have been the basis for the argument, to whatever extent it might avail, that the box was held for DeJahan along with his mandate of delivery to Mrs. Tassin. But the deceased factor, sick when the proposed pledge was discussed and attempted to be carried into effect, and unfitted for business, failed to bear in mind the precautions devised by him for the protection of the creditors. Death closed his lips without any instructions to George Lanaux in respect to the box. The record placed George Lanaux before the court as holding the box for him whose name it bore, and from whom it came. It can not therefore for one moment be contended that he bore the slightest relation to Mrs. Tassin. When the pledge is consummated by delivery to the third person to hold for the-creditor, it is the natural result that a liability at once arises between the third person, thus selected, and the creditor. Now such liability in this case existed. Laurent thus puts it: “L’Article 2076 admetque le créaneier gagiste est mis en possession lorsque le gage a été remis á un tiers, convenu entre les parties. II faut done une convention qui établisse un lien entre le tiers et le créaneier gagiste, de sorte que le créaneier gagiste posséde par l’intermédiaire du tiers.” Laurent, 28 Vol., p. 484. This case can be supported on no theory that George Lanaux held for the creditor, of whose asserted interest in the box he was ignorant, and to whom he sustained no relation whatever of trust or liability.

It ispnsisted, however, that the court, in solving the issue of the possession of these securities claimed by Mrs. Tassin as pledged to-her, shall hold for naught that they were in the debtor’s box, deposited and held for him, and never taken from it except by his executors when the debtor’s death occurred. It is claimed that the-pledge and possession of Mrs. Tassin is to be supported on the theory that George DeJahan had been selected to hold possession of the-pledges for her and actually had that possession. Her whole case-rests on that theory. Is it to be maintained that DeJahan ever was chosen to take these securities into his possession, or that he ever had the vestige of any such possession? All must realize the exaction of the Code that actual delivery of the pledge must be made to-the creditor, or possession delivered to a third person chosen by debtor and creditor to hold for the creditor. What the Oode means by this selection of a third person to hold for the creditor, and by his possession of the pledge, requires no comment. Was DeJahan ever clothed with any such agency or vested with any such possession? DeJahan’s whole function with respect to the securities was derived from the order of his employer. That was to place the package of securities in his employer’s bank box and deliver the package on the call of the creditor. That order certainly did not authorize the clerk to take the securities into his possession, to hold them for the creditor. Nothing of the kind was contemplated. If the creditor had called, she doubtless would have obtained the securities and thus obtained the possession essential to perfect the pledge. No such call was made, and the securities remained in the debtor’s bank box undelivered. The clerk never conceived he had any authority to remove the securities from the bank box. When the creditor demanded the securities, after the debtor’s death, the clerk declined, stating his authority ceased with the death; adding, however, the creditor’s right would ultimately be secured. His refusal without any qualification, in our opinion, defined his power, because death revokes all unexecuted orders of the principal. There was then no agreement whatever that the securities claimed as pledged to Mrs. Tassin should be put in possession of the clerk, as a third person, to hold for Mrs. Tassin. Nor does it in the least affect the question that the clerk communicated the order of his employer to deliver to her, nor that she signified her assent. No license of construction enables us to transform an order of the employer to his clerk for the delivery, if called for, of securities from the employer1^ box in bank, into a mandate that the clerk shall remove the securities and take them into possession to hold for the creditor. Least of all, can we hold the clerk ever had that possession. Placed in the debtor’s bank box, deposited and held as his property, the securities remained untouched until his death, and then were removed only by his executor to inventory the debtor’s property. There was clearly no' delivery of the securities, none to the creditor, none to a third person to hold for her. The pledge was inchoate, a delivery proposed but never accomplished. The case is of the class of pledges proposed but not perfected, and nothing is better settled than that an inchoate or executory contract of pledge, not perfected by delivery, confers no rights as against other creditors. The death of the debtor fixes the rights of the creditors as they exist at that moment. The same rule is enforced when the debtor makes a surrender of his property to his creditors. No delivery had been made when that death occurred; none after was possible. Civil Oode, Arts. 3133, 3152, 3162, 3182, 3183, 3185; 12 Rob. 243; 2 An. 872; 5 Rob. 101; 3 An. 582. See the cases collected in 1 Hennen’s Digest, p. 686, No. 7; 2 Hennen’s Digest, p. 1504, No. 1. The creditor’s ease lacks the life of the pledge in a controversy with creditors, i. e. delivery.

In a commercial community, especially, it is of importance the law of pledge should be clearly understood, and that requisites of common acceptance should not be made uncertain. The creditor’s case exacts, we think, that the test of our law shall be displaced. The case may receive appropriate illustration by supposing that precisely such a pledge as is claimed here for Mrs. Tassin was proposed to any bank or business man. The proposition would be the execution of the borrower’s note with securities attached, the note and securities placed in a package, marked with the lender’s name, the package placed in the debtor’s bank box, the box deposited in bank by the debtor, his clerk instructed to deliver the package on the call of the creditor, and the creditor notified when all this is done, and of the instruction given the clerk. Does any one suppose that a dollar could be obtained on any such so-called pledge of securities to be kept in the debtor’s bank box, supplemented by his direction to the clerk for delivery to the creditor? Would any one suppose that unless that delivery was obtained there would be any pledge as against creditor of the debtor? On the contrary, the prompt answer of any bank to any such proposition would be, that putting securities in the debtor’s bank box with all the formalities and instructions indicated, was neither delivery to the creditor nor to a third person to hold for him, and hence there was no pledge. If a pledge, dependent as it is on delivery to the creditor, or the third person to hold for him, can be accomplished in the mode we are asked to recognize in this ease, i. e. of securities never out of the debtor’s bank box from the time he placed them in it until his executor took charge of them, there would be no limit to the pledges the debtor might make of the same property. To ■ each lendor the debtor might tender the security of his own bank box, with the directions to his clerk of delivery to the creditor. The delivery obtained by any of those relying on this bank box pledge would demonstrate that all the others had no pledges. This theory ■that pledges can be made without the complete dispossession of the •debtor, and that the pledge may be consummated by marking the ■creditor’s name on the package of securities in the debtor’s bank box, supplemented by his unexecuted order for delivery given to •his clerk and communicated to the creditor, finds its answer in our ■Code, in the text books and adjudicated cases. That answer is: the pledge requires possession in the creditor. Without that possession the pledge is inchoate or “executory” only as between the debtor and the asserted pledge creditors, but gives no right whatever as against other creditors.

Boilleux thus puts it: “ Une appréhension manuelle est de 1’essence du contrat de gage, on congoit que le législateur ait du subordonner les droits du créancier a cette condition, puisqu’il ne s’agit pas d'un privilege proprement dit, c’est-á-dire d’un droit attaché a la qualité de la créance; mais d’une préférence fondée sur les possessions: si le débiteur ne se dessaissait pas le gage ne serait pas qu’une source de fraudes, ríen ne l’empécherait pas de conferer successivement a plusieurs personnes des droits sur la chose” (7 Boilleux, p. 129). This commentator on the Napoleon Code is felicitous in his development of the policy to guard against frauds that require the complete dispossession of the debtor of the pledged "property, but all the text books insist on that dispossession. See in addition to the authorities cited Story on Bailments, Sec. 299; Casey vs. Cavaroc, 96 U. S. 477; Story on Agency, Sec. 367 et seq.

Adhering, as we think, to the text and spirit of the Code, it is our ■conclusion the pledge claimed for Mrs. Tassin was never-perfected. There was neither delivery to her nor possession for her in a third person. The bonds and securities claimed as pledged to her, never delivered but in the debtor’s possession at his death, are to be deemed the common pledge of all his creditors. Civil Code, Art. 3183.

It is therefore ordered, adjudged and decreed that our former judgment be avoided and set aside, and it is now ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.

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Dissenting Opinion

Dissenting Opinion.

Watkins, J.

With respect to the claim of the opponent, Mrs. Tassin, the question is whether the possession of DeJahan was such that her privilege had struck the collaterals that were attached to the note of Pierre Lanaux so effectually as to have consecrated their proceeds to its payment, had said collaterals been seized and sold by any other creditor of Lanaux.

The contention of Mrs. Tassin’s counsel is that, at the request of Pierre Lanaux, it was agreed between him and Mrs. Tassin that she should loan Lanaux the sum of forty thousand dollars out of her funds then in his hands, on his demand note, to be secured by a pledge of Louisiana State consols and New Orleans Insurance Association stock as collateral security. That it was further agreed between said parties that the pledge was to be arranged in the following manner, namely:

The note, together with the securities, were to be placed in the possession of George DeJahan, who was to place them in a bank box, which was to be placed on deposit by DeJahan in an iron safe of the New Orleans Insurance Association, at the time in the branch depository of the State National Bank, and in the custody and under the control of the secretary of the insurance association, who alone possessed the combination of the vault and safe.

That the secretary of the insurance association was instructed to deliver the box containing the securities to DeJahan on his demand, the latter having instructions from Pierre Lanaux to deliver the note and pledged securities to Mrs. Tassin on her demand.

That on the 3d of August, 1892, the note and act of pledge were executed, and they, together with the accompanying securities, were placed in the box and the box was placed in the safe of the insurance association, where it remained uninterruptedly until after Lanaux’ death.

That on the 7th of August, following the date of the selection of the securities, and in pursuance of the previous agreement of Mrs. Tassin and Pierre Lanaux, and by direction of Pierre Lanaux, De-Jahan visited Mrs. Tassin at her plantation in the parish of St. John, and explained to her all that he had done — describing the note which he had executed for Lanaux to her order, with the designated securities attached — and that Mrs. Tassin expressed herself satisfied that he had carried out the aforesaid agreement, and approved of what he had done.

That immediately after the death of Pierre Lanaux, Mrs. Tassin called on DeJahan, and, in person, demanded the note and securities; but he declined, because, in his opinion, the death of Lanaux had terminated his authority in the premises.

The facts bearing on the foregoing propositions are detailed substantially by two or three of the witnesses, and it may be fairly summarized as follows, viz.:

. Mrs. Tassin states that she had three separate and distinct interviews with Pierre Lanaux on the subject of her business, then in his hands, viz., on the 11th of June, 1892, on the 21st and again on the 25th of July, 1892.

In the first interview, she gave him instructions to invest for her, in State bonds, the balance of forty-five thousand nine hundred and seventeen dollars and twenty-six cents then remaining in his hands to her credit; in the second, she agreed to loan him forty thousand dollars on his demand note, secured by a pledge of State bonds of the par value of thirty-five thousand dollars, and in stocks of the New Orleans Insurance Association sufficient in amount to cover the balance of five thousand dollars; in the third, there was a repetition of the second, the details thereof being reiterated.

She states that Pierre Lanaux’ proposition was to place his demand note for forty thousand dollars, with the aforesaid securities attached, in the hands of George DeJahan, which he would instruct him to place in a bank box in the safe of the New Orleans Insurance Association, to which George Lanaux, secretary of the company, had exclusive access; and that, at the same time, he would instruct the secretary to hold the box subject to the order of DeJahan, who was to be authorized to deliver said note and securities on her demand.

That, in her last interview with Pierre Lanaux, the latter inquired of her to know if she perfectly understood all the instructions he had previously given her, and that she replied in the affirmative.

Mr. George DeJahan makes the following statement, viz.:

“ Mr. Pierre Lanaux gave me instructions before leaving — that is to say, a few days before, on the 2d of August, he told me to make a note for Mrs. Tassin; to place forty thousand dollars for Mrs. Tassin, or thirty-five thousand Lousiana State bonds, and to compíete the balance of the pledge with New Orleans Insurance Association slock.”

Again he states:

“ On the 3d of August Mr. Lanaux told me that he had given instructions to Mr. George Lanaux to call upon me for a certain box, in which I was to place the pledges for Mrs. Tassin and (others) * * * Mr. Pierre Lanaux called at the office (on) the 3d, at about 2 p. m. He asked me if I had executed his orders. I told him yes. I went to the bank and got the box. I brought it into the office, opened it in his presence, exhibiting to him the notes for all these different parties, made packages before him, and replaced them in the box.

“ That was on the 3d of August.”

Again he says:

“Mr. Lanaux’ instructions were to deliver to. the parties whose names were on these packages, at their request.”

He states that on the 4th of August, at about 11 or 12 o’clock m., he telephoned George Lanaux, secretary of the insurance association, that he was ready to deliver to him the box, and he came and met him, and that they went together and placed the box in his safe, in the vault of the insurance association.

He further states that he retained the key to the bank box, which continuously remained in the safe until after the death of Pierre Lanaux, and was then delivered to him by George Lanaux, and he opened it in his presence.

He was asked the question whether he would have delivered the packages to the parties named if they had demanded them; and his answer was that he would, as Mr. Lanaux had instructed him to deliver the packages to the parties named on the back of the different envelopes, upon their demand. He concludes his answer by making this statement:

“ His instructions were to put them in the box, as I stated yesterday, subject to their demand.”

This witness further states that he went to “Mrs. Tassin’s house on the 7th of August, 1892, * * and told (her) that Mr. Lanaux had placed — invested for her, forty thousand dollars on his note, secured by thirty-five thousand dollars of Louisiana fours, and five hundred and twenty shares of New Orleans Insurance Association, as he had promised her. Mr. Lanaux had told me to go there.

“ Q,. Did he instruct you to go there and inform, her ?

“A. Yes.

“ Q. After you related to her (Mrs. Tassin) what occurred on the 3d of August, did she say anything ?

“ A. Well, she said it was all right, according to what Mr. Lanaux had promised her."

This witness again states that after Mr. Lanaux’ death, Mrs. Tassin called on him for the note and securities, but he declined to deliver them, because, in his opinion, his authority from Pierre Lanaux ceased at his death.

Oounsel for the executor said, interrogatively, “ And, therefore, you knew that when he died you' would have no power over it, for the reason that it (the box) must be opened in his estate,

“But his answer was ‘no; I did not think it belonged, even after his death, to his estate.’ ”

“ Q. The instructions of Mr. Pierre Lanaux were up to the time of Ms death ?

“ A. He did not specify up to the time of his death. The words were: ‘ You will deliver these packages to the parties whose names are on them, on their demand.’ Those were the only words he spoke to me in reference to these packages.”

The witness then repeats, that the investments or pledges were thus made and placed, in a bank box, and the parties were duly notified of the fact of the pledges having been made; and that their accounts current were duly credited with the proper amounts, corresponding with the amount of the secured notes.

Mr. George Lanaux states that on the 2d or 3d of August, 1892, Pierre Lanaux “ crossed ever from the State National Bank to the office of the New Orleans Insurance Association, came to (his) office and said, ‘ George, can you put a bank box in the iron safe of your company?’ To which question the witness replied, ‘It depends on the size of the box. Our iron safe is pretty full.’ Lanaux said, ‘ Try and put the box in the safe; George DeJahan will give you the box-.’ That was all that P. Lanaux said to me in relation to the box. That was in the morning between 10 and 11 o’clock. About 2 o’clock that same day I telephoned to DeJahan * * * asking him if P. Lanaux told him about a bank box which I was to put in the safe of the New Orleans -Insurance Association. He said yes, but he was not ready to put the box in the safe, but would telephone me. * * * The following day DeJahan telephoned that he was ready to pnt the box in the safe of the company. I answered, to wait for me at Lanaux’ office, that I was coming immediately. I left my office and proceeded to Pierre Lanaux’ office on Oonti (street), and together, accompanied by DeJahan, took the bank box from the desk in P. Lanaux’ office and went to the Branch Depository State National Bank, corner of Royal and Conti streets, and having assistance of employés of the bank we went into the vault where our safe is. I opened the safe and after having moved certain securities from one shelf to another we succeeded in putting in the bank box. * * * There is no key to the safe. There is a combination. I had the combination. I was the only person who had the combination.”

On being asked if he knew anything of the contents of the box, said he did not.

He further states:

“ On the .6th of September I delivered the box to George DeJahan, who called for it. I had received it from George De-Jahan. * * * He returned it to me in the course of five minutes.”

This witness again says:

“ I surrendered the box to DeJahan, having received it from him. I did not know whose agent he was, or considered himself to be. That I can not answer. DeJahan will answer that. You can not expect me to answer for DeJahan.”

Mr. Denis Lanaux stated that “ the first time he saw this tin box was on the 6th of September * * * with DeJahan and George Lanaux. I had been informed by DeJahan that he had a box, which box was in the safe of the New Orleans Insurance Association, which was in the vault of the Branch Depository of the State National Bank,” informing witness of the contents.

He said that George Lanaux opened the vault and DeJahan opened the bank box. “We found packages — one marked ‘Property of Mrs. Tassin,”’ etc. He again said: “DeJahan told me he had the bank box.” and being asked “when he was so informed by DeJahan,” replied that “it was on the 4th or 5th of September, * * * two or three days before Lanaux died.”’

On this evidence there can be no doubt of the following facts being fully established, viz.:

1. That there was an agreement between Pierre Lanaux and Mrs. Tassin that certain specified collaterals were to be attached to his demand note for forty thousand dollars in her favor, as security therefor.

2. That the note was accordingly executed and the aforesaid col-laterals were thereto attached, and that same were placed in an envelope endorsed “Property of Mrs. F. E. Tassin,” and that this envelope was deposited in a bank box, that was locked, and deposited in a safe in the vault of the New Orleans Insurance Association.

3. That DeJahan was proposed by Pierre Lanaux as the person who was to carry the agreement between himself and Mrs. Tassin into effect, and that Mrs. Tassin was so informed, and unequivocally accepted the proposition.

4. That Pierre Lanaux gave DeJahan instructions in exact conformity with the aforesaid agreement; that in pursuance of said instructions DeJahan accepted the trust, and made and executed in favor of Mrs. Tassin a demand note for forty thousand dollars and signed per pro. Lanaux; and to that note attached the specified col-laterals, and placed them in a bank box, and locked the box and deposited it in the iron safe of the New Orleans Insurance Association —retaining the key in his possession.

5. That in pursuance of the instructions of Pierre Lanaux, DeJahan visited Mrs. Tassin at her plantation in the parish of St. John, for the express purpose of reporting to her, carefully and succinctly, all he had done, as Mr. Lanaux had promised her he would, and which she acknowledged to DeJahan had been done according to their agreement.

6. That DeJahan, assisted by George Lanaux, secretary of the insurance association, and other bank employés, placed the bank box containing the securities specified in the safe of the insurance association in the vault of the company — DeJahan retaining the key of the box and George Lanaux keeping the combination of the safe.

7. That the box thus remained on deposit and was not touched by any one until after the death of Lanaux, when George Lanaux opened the safe and permitted DeJahan to remove the bank box.

8. That on the 7th of September, 1892 — the next day after the death of Pierre Lanaux — Mrs. Tassin called upon DeJahan for the delivery to her of the note and the pledged securities, but her re? quest was declined on account of Pierre Lanaux’ death — DeJahan explaining that she would receive them in a few days.

9. That on the following day DeJahan, accompanied by Denis Lanaux, visited the Branch Depository of the State National Bank and called upon George Lanaux, secretary of the New Orleans Insurance Association, for the delivery of the bank box; that the secretary at once opened the vaults and safe of the insurance association and delivered the bank box to DeJahan, and that DeJahan produced the key, opened the box, and he and Denis Lanaux examined the packages therein deposited — whereupon the bank box with the pledged securities were returned to the custody of the insurance association.

Recurring to the query propounded, it appears that, in the light of the evidence detailed, it must receive an affirmative reply — that the possession of DeJahan was such that Mrs. Tassin’s privilege so effectually struck the collaterals that she would have been entitled to the proceeds if any other creditor of Lanaux had seized and sent them to sale.

Or in other words, Pierre Lanaux absolutely lost, or discontinued control over the pledged collaterals from the moment the bank box containing them had been, by DeJahan, deposited in the iron safe of the New Orleans Insurance Association. After that date the custody of DeJahan was exclusively for the account of Mrs. Tassin, to whom he was directed by Pierre Lanaux to deliver upon her demand. With Pierre Lanaux’ knowledge, and by his direction, the collaterals indicated by him and agreed upon by him and Mrs. Tassin were segregated from Ms other assets, were attached to his demand note in her favor, and placed in an envelope and marked, “Property of Mrs. E. E. Tassin,” and by DeJahan deposited in a bank box of which he possessed the key. With the assistance of the secretary of the insurance association and others of its employés, the bank box containing these pledged securities was removed from the desk of Pierre Lanaux and deposited in an iron safe in the vault of the insurance association, of which its secretary alone possessed the combination— thus completely severing Pierre Lanaux’ control and dominion over the box and its contents. And when DeJahan called on Mrs. Tassin and informed her of all that he had done, “as he (Pierre Lanaux) had promised her, ’ ’ and Mrs. Tassin expressed her approbation of the acts he had performed, “ as Mr. Lanaux had promised her,” the vinculum of the contract was completed by her acceptance; and henceforth DeJahan was exclusively her agent.

That DeJahan so understood his position is fully attested by his statements to the effect (1) that Mr. Lanaux’ instructions were for him to deliver the pledged collaterals to the parties whose names-were endorsed on the respective packages at their request; (2) that the instructions of Pierre Lanaux were not up to the time of his death, but that he was to deliver upon the demand of the pledgees; (3) that he (DeJahan) informed Mr. Denis Lanaux two or three days prior to the death of Pierre Lanaux that he held a box in the safe of the New Orleans Insurance Association, containing pledged securities; (4) that immediately after the death of Pierre Lanaux DeJahan visited the vault of the insurance association in company with Denis Lanaux, and the secretary of the insurance company opened the vault and the safe, and delivered the box containing the securities into the hands of DeJahan, and he unlocked it in the presence of the secretary and Denis Lanaux, and thereupon he and Denis Lanaux examined the securities that were found in the box, and, among the number, the package endorsed “Property of Mrs. P. E. Tassin;” (5) that after their examination was completed the packages were returned to their places. Mr. DeJahan locked the box and returned it to the custody of the secretary of the insurance association, and he in turn placed the box in the iron safe, closed it, as well as the vault, he alone possessing the combinations. What more could have been done, or what additional formality could have been observed, to have perfected the delivery of pledged collaterals, to a third person agreed upon by the parties.

The text of the law is, “ It is essential to the contract of pledge that the creditor be put in possession of the thing given him in pledge, etc.” R. C. C. 3152.

But there is an express qualification placed upon this article in these words, viz. :

“ In no case does this privilege (R. C. C. 3157) subsist on the pledge, except when the thing pledged, if it be a corporeal movable, or the evidence of a credit, if it be a note or other instrument under private signature, has been actually put and remained in the possession of the creditor, or of a third person agreed upon by the parties." R. C. C. 3162.

Was not DeJahan the third person agreed upon by the parties? Was not his selection duly notified to him? Did he not carry out his instructions to the letter in the preparation of the note and pledge and in giving to Mrs. Tassin information of his having performed all the .acts that Pierre Lanaux had promised her should be performed? Did not Mrs. Tassin specifically approve and accept same, and subsequently call on DeJahan for the note and pledged collaterals in keeping with Lanaux’ directions to deliver on his order? And, finally, did not DeJahan declare to Denis Lanaux, before Pierre Lanaux’ death, that he held possession of the pledged col-laterals; and, after Lanaux’ death did not the secretary of the insurance association deliver them to him? And can it be doubted, in view of the act of the secretary in surrendering the actual possession of well nigh $150,000 of State bonds into the power of DeJahan two or three days after the death of Pierre Lanaux, that DeJahan had a right of custody and control, entirely independent of Lanaux? There can be no other solution of the question.

What is the answer to the foregoing proposition? That of the District Judge was — as appears from his reasons for judgment — that the instructions of Lanaux to DeJahan ‘ ‘ were those of an employer to his clerk.” That Lanaux “said nothing about the bank box, or of DeJahan’s holding it, or the securities it contained, as the agent for any one, or as a party agreed upon with whom the box and securities were to be deposited; nor did he, at the' time, instruct DeJahan to notify the pledgees that the securities had been placed in the box subject to their demand; but DeJahan testifies that he did so, at some time not mentioned in the testimony.”

It is evident that the Judge a quo was under a misapprension of the facts adduce in evidence on all of the foregoing propositions. Pierre Lanaux being dead his lips are sealed and can not speak; but DeJahan’s testimony is clear and unmistakable. He says — using his own words: “ His instructions were to put it in the box, as I stated yesterday, subject to their demand.” Again: “ He did not specify up to the time of his death. His words were: ‘You will deliver these packages to the parties whose names are on them on their demand.’ ”

Again: “I went to Mrs. Tassin’s house on the 7th of August, 1892, * * * and told her that Mr. Lanaux had placed, invested for her forty thousand dollars on his note, secured by thirty-five thousand dollars of Louisiana fours and five hundred and twenty shares of New Orleans Insurance Association, as he had promised her. Mr. Lanaux had told me to go.

“ Q, Did he instruct you to go there and inform her ?

“A. Yes.

“ Q. After you related to her (Mrs. Tassin) what occurred on the Sd of August, did she say anything ?

“A. Well, she said that it was all right, according to what Mr. Lanaux had promised her.” '

From the foregoing, it is perfectly evident that DeJahan had been made acquainted with “ what Mr. Lanaux had promised her,” and that one of the things he had promised her was that DeJahan was to deliver the securities to her on her demand. It is equally evident that he did inform Mrs. Tassin that he had deposited Lanaux’ note and the securities he had specified in their previous agreement, which he would deliver on her demand; and that she expressed herself satisfied that he had done all that Lanaux had promised her. It is likewise evident that the dates, places and circumstances are all precisely detailed, with perfect accuracy.

That DeJahan was, at the time, the clerk of Pierre Lanaux, is a matter of no consequence.

The following queries have been propounded, the trend of which is to show that DeJahan acted in the capacity of Lanaux’ clerk throughout all of these transactions, and that, consequently, the bonds were at all times in Lanaux’ possession, being in his bank box.

The two must be taken together, as one is but the counterpart of the other.

“ (1) Can this court hold as a proper interpretation of the law of pledge—

“ That a debtor putting bonds in a package, marked with the debtor’s name, instructing his clerk to deliver, the creditor apprised in advance that instructions will be given, and notified afterward by the clerk — consummate the pledge, although the instructions were not fulfilled, and the bonds always remain in the debtor's box.

“ (2) Would any bank take such a pledge — i. e., lend money on the debtor’s bonds, in his bank box, and on his direction to his clerk to deliver; or would the bank have any pledge unless the clerk delivered? ”

Both of these questions may be answered in the negative without in any manner affecting the claim of Mrs. Tassin.

If it be conceded that DeJahan was acting as Lanaux’ clerk in the transaction with Mrs. Tassin, and that the collaterals remained in Lanaux’ custody all the while, of course there was no pledge. But DeJahan was the third person agreed upon between Pierre Lanaux and Mrs. Tassin to hold the collaterals for the latter. And, though the box may have been the property of Pierre Lanaux, it was removed from his possession before the collaterals were placed in it; and when the collaterals were deposited in the box DeJahan locked it, and thereafter retained the key. Then DeJahan, assisted by the secretary and his employés, put the box in the safe of the insurance association, to which the secretary alone possessed the combination No one had access to the box but DeJahan, and the secretary gave him access to it, after the death of Pierre fianaux — he being accompanied by George Lanaux. And, while it is true that DeJahan was the elerk of Pierre Lanaux within the scope of the latter’s business, he was, at the same time, the third person agreed upon by him and Mrs. Tassin toi hold the securities for the latter. There is no incompatibility between the two positions. This was distinctly held in Weems vs. Delta Moss Company, 33 An. 974, this court declaring that “ the objection that the two custodians of the property pledged were employés of the company has no force, and can not destroy the effect of delivery to Richard.”

Consequently, this is not the case supposed of collaterals being in a debtor’s bank box, who had given his elerk instructions to deliver, which instructions he had not fulfilled; but it proceeds on the theory that DeJahan was the third person agreed upon by the parties, and that he had possession, with instructions to deliver to Mrs. Tassin, on her demand — within the plain and evident meaning of the Code. (

But a further proof of Pierre Lanaux’ lack of possession and control of the collaterals is furnished by the procuration that was annexed thereto, authorizing the pledgee. — -not DeJahan — to séll the collaterals. Such a mandate to the pledgee is an adjunct of the pledge, and inseparable from it. Such a mandate is, in its nature, irrevocable. Journal du Palais, 12 and 19 of 1827. And in Renshaw vs. His Creditors, 40 An. 37, this court said: “The same principle applies in every case where the mandate is granted as a condition of the contract, or as a means of executing it.

“ In such case, the mandate, forming an element of a synallagmatic contract, is impressed with the qualities of such a contract, and is irrevocable. Journal du Palais, 7 July, 1837.”

And the court further observes:

“ It is plain that the powers of attorney here involved belong to the class which have been described, forming important adjuncts of the contracts of pledge themselves, and stipulated in the interest of the mandatories; that the mandator had no power to revoke them, and hence they are equally irrevocable,” etc. 40 An. 40, Renshaw vs. Creditors.

After its execution, Pierre Lanaux had no more power to revoke this mandate to the pledgee to sell than he had to revoke the note he had executed. When executed and delivered into the hands of the depositary agreed upon between himself and Mrs. Tassin, the mandate became irrevocable in so far as he was concerned.

The only question for consideration is, whether the agreement between pledgor and pledgee, and the possession of the third person agreed upon, was binding on Lanaux’ creditors, or, in other words, whether Mrs. Tassin’s privilege could be enforced on the proceeds of the securities pledged in case they had seized and sold them — as they evidently had the right to do. Auge vs. Variol, 31 An. 865.

If the pledge in favor of Mrs. Tassin was in keeping with the Code it was evidently binding on these creditors of Lanaux.

And as the Code authorizes that a contract of pledge may be effected by delivery of possession of the thing pledged to a third person agreed upon by the parties, the only question in this ease is, whether DeJahan had an effectual possession of the bonds. The only figure that the secretary of the insurance association cuts in the transaction is that, being the custodian of the company’s vault where the bank box was deposited, his custody proved the possession of DeJahan, and disproved the possession of Pierre Lanaux.

' If so, the Code declares that the privilege of the pledgee does subsist on the thing given in pledge, (1) when “ it has been actually put and remains in the possession of the creditor; ” (2) or when “it has been put and remains in the possession of a third person agreed upon between the parties.” R. C. O. 3162.

The latter character of pledge has been frequently and recently recognized and enforced by this court, on evidence far less clear and cogent than that which is afforded by this record.

In Conger, Exr., vs. City of New Orleans, 32 An. 1250, a case is presented of a demand for three twenty-year bonds of the city of New Orleans which the city had pledged — retaining the bonds in her own possession, she being the debtor; and this court said:

.“Possession, though essential to the validity of the pledge, need not be always in the creditor. It is sufficient that the thing pledged be in one occupying ad hoc the position of a trustee.

“The debtor himself may, in some cases, be considered as such trustee, and be given possession of the thing by him pledged, provided his tenure be precarious and clearly for the account of the creditor. The Louisiana doctrine is in perfect accord with both common, Roman and French laws. R. C. C. 3162; C. N. 2076,” and various cited authorities, particularly Pothier Pandects; Bell’s Commentaries on Scotch Law; Troplong Nant.; Dalloz Rep., and Duranton.

The authority of the Conger case has been followed and approved by this court in many subsequent and well considered cases.

In Weems vs. the Delta Moss Company, 33 An. 973, a case is stated of a pledge having been made of the building and factory of the company and its various movable effects, enumerated in the act of pledge, which was entered into between the president of the company and the creditor, appointing one of the company’s employés as custodian. And that pledge was maintained against the creditors of the company after it became insolvent — on the authority of the Conger ease.

In Jacquet vs. His Creditors, 38 An. 863, a ease is stated of a pledge-having been executed of certain machinery used for the manufacture of tobacco, consisting of boilers, engines, cutters, etc., which was. agreed to by the parties, who selected a third person as custodian— the act of pledge stipulating a right of sale in the pledgee. Same-was maintained against the creditors of the partnership after the-surrender of the pledgors, on the authority of the Conger and Jacquet eases.

In Woodward vs. the American Exposition Railway Company, 39 An. 566, a controversy is stated between the plaintiff, asserting a privilege resulting from a pledge of certain iron rails and other appurtenances used in the construction of a railroad, and which had been secured by an act of pledge of the railroad and all of its appurtenances by placing same in the custody of a third person named— the plaintiff’s privilege being resisted by an intervenor claiming a, privilege upon certain lumber he had sold the company for the purpose of building bridges, etc. The demand of the intervenor was-rejected, and that of the plaintiff was sustained — his privilege as pledgor of the railroad, in its entirety, being sustained as upon personal property, on the authority of the Conger, Weems and Jacquet cases.

In Levy vs. Ford, 41 An. 873, a case is stated of a pledge of mortgage note for seven thousand dollars for the security of two different claims of two different creditors — a third person holding possession as the mutual mandatory of the pledgor, and the two pledgees, they each having a limited interest in the pledged collateral. This pledge was maintained as against a competing mortgage creditor of the pledgor.

Peters vs. Pacific Guano Company, 42 An. 690, presents the case of the agents of a company engaged in the manufacture of guano, .giving in pledge to two lendors of money in Boston, on a cargo of guano, a bill of lading for the goods in transit to the consignee thereof afc New Orleans — one of the pledgees holding for the two. This court not only maintained the pledge with respect to the people in Boston, but held also that it extended to the consignees of the agents in New Orleans, as well as to the New Orleans bank, to whom he assigned it for another and independent loan — all without the specific knowledge of the guano company, the agent’s authority being purely derivative.

On the authority of the foregoing well-considered cases, interpreting the provision of the Code, which declares that a privilege subsists on the thing given in pledge, if it has been put and remained in the hands of a third person agreed upon” (R. C. C. 3162), the jurisprudence of this court may be considered thoroughly settled as to the question that is controverted in this case, not only with regard to the parties inter se, but with regard to creditors, privileged as well as ordinary, even in insolvencies and successions.

As opposed to the foregoing decisions the opposing creditors cite and rely on Casey vs. Cavaroc, 96 U. S. 467, which is a Louisiana case, and is predicated on Louisiana decisions and precepts of the -civil law, as stating a different rule.

In that decision a case is stated of a New Orleans bank offering to make a pledge of collaterals as security to the Soeieté de Credit Mobilier, of Paris, France, for proposed acceptances; the bonds and motes to be placed on deposit with a third person named and agreed upon between the bank and the society, said third person becoming .guarantor of the bank.

The question raised in that case was, whether “ there was such a delivery and retention of possession of the collateral securities as to constitute a valid pledge by the law of Louisiana?” And making ¡answer to that query the court said:

“ Olearly they were never out of the possession of the officers of the bank, and were never out of the bank for a single moment, bat were always subject to its disposal, in any manner whatever, whether by collection, renewal, substitution or exchange, and collections, when made, were for the account of the bank.”

In support of their opinion the court refers to only two decisions of this court as bearing on the question at issue, and those decisions, were rendered in Geddes vs. Bennett, 6 An. 516, and Succession of DeMeza, 26 An. 35. In those cases pledges were not sustained.

In the former a case is stated of certain barrels of whiskey being the object of a pledge, the creditor permitting the pledgor to remove them to his own premises, on his simple receipt, he subsequently making sale of them to another. In a suit of the pledgeeagainst the purchaser the sale was maintained.

That ease has not the least applicability, in my conception, to the* Oavaroc case, nor to the instant one, for the reason that it was not; the case of a thing being given in pledge, by placing it in the hands, of a third person agreed on.

In the latter case certain creditors of the deceased having made-advances, on the faith of an insurance policy, which he had left in the hands of his book-keeper, with instructions to deliver, the righfe, of pledge was denied, on the ground that the creditors did not have the possession requisite to constitute a piedge — this court holding- “ that the policy was never beyond the control of DeMeza, and that. Myers & Levy (creditors) never had the requisite possession thereof. The book-keeper never held the policy as agent or trustee for Myers & Levy. Although informed of his employer’s intention in regard 4o-one of the policies, be was never entrusted to deliver to Myers & Levy or any one else. There was, therefore, no delivery of the policy to Myers & Levy, although the deceased intended to do so. Consequently they never held it as a pledge, as collateral security,, for their accommodation endorsements.” (Our italics.)

It is evident, upon simple perusal of that paragraph of the opinion, that it was a case of alleged possession by the creditor of thecollaterals, and not that of a third person agreed upon by the creditor and debtor.

The two cases are exactly parallel, and, in my opinion, not in line-with the Oavaroc case.

In that case the court made an extensive examination and colla-tion of cases, and in its summary gives a very clear and comprehensive definition of the character of possession that is necessary to ■complete a pledge in the hands of a third person agreed on.

“ The difference, say the court, “ ordinarily recognized between a mortgage ” — i. e., at common law — “ and a pl.edge is, that title is transferred by the former, and possession by the latter. Indeed, possession may be considered as of the essence of a pledge (Pothier Nantissement) ; and if possession be once given up, the pledge, as such, is extinguished. The possession need not be actual. It may be constructive, as when the keys of a warehouse containing the goods pledged are delivered, or a bill of lading is assigned.

“In such case, the act done will be considered as a token standing for the actual delivery of the goods. It places the property under the power and control of the creditor.

“In some cases, such constructive delivery can not be effected, without doing what amounts to a transfer of the property also.

“ In such case, there is a union of two distinct forms of security— the pledge and mortgage; mortgage by virtue of the title, and a pledge by virtue of the possession.

“ This advantage exists when notes and bills are transferred to a creditor by way of collateral security. The possession gives them the character of a pledge. The endorsement, if payable to order, and their delivery, if payable to bearer, gives him the title also ;■ which is something more than a pledge.

“This double title existed in White vs. Platt, 5 Denio (N. Y.) 269, and Clarke vs. Islin, 21 Wall. 360. Hence the actual possession of the securities by the creditor was a matter of less importance in those cases.”

So in the instant case, the collaterals being of the class of commercial paper that are payable to bearer, and which, consequently, pass a complete title by mere delivery, DeJahan had title, as well as possession — his possession being evidenced by his possession of the key to the box in which the securities were kept, and to which no •one else had access, and upon which the opponents acquired no right during Pierre Lanaux’ lifetime.

But even if it be considered doubtful whether DeJahan held possession independently of Lanaux for the account of Mrs.Tassin, the court, in the Cavaroc case, cited various cases in which precedents are given of privileges having been recognized, as against creditors, even when the pledgor retained precarious possession of the thing pledged — as intimated in the Conger case.

A case in point is that of Clarke vs. Islin, 21 Wall. 360, in which the court held that the pledge was not vitiated by the pledgee returning the collaterals pledged to the pledgor for collection.

Also the case of White vs. Platt, 5 Denio. (N. Y.) 269, to same effect — the court holding that in such case the pledgor acts as the servant or agent of the pledgee, and the character of the security was not changed.

A strong case of the kind is cited from the. Massachusetts court— Macomber vs. Parker, 14 Pickering, 497 — of a pledge having been maintained through the precarious possession of the pledgor.

The pledgor was the proprietor of a brickyard, and the pledgee advanced the money requisite for the manufacture of bricks — the contract being that the bricks, as fast as made, should be pledged as security for the advances thus made; but the pledgor was to retain the bricks in his charge and sell them at retail and deposit the proceeds in bank to the credit of the pledgees.

Before sale the bricks in the yard of the pledgor were attached for a debt, but the pledge was maintained, the court employing this language, viz.:

££ To say that the limited authority to sell the brick by retail, in small sums, on account of the plaintiff, was a waiver of their posession of the residue that remained in the kilns in their yard, would be clearly against the intent and meaning of the parties; unreasonable and unwarranted by the evidence.

££ The special authority given by the plaintiff to the (brickmaker) was to clothe him with the character of an agent, to a limited extent only, and no remission to him, in his character of pledgor, of the plaintiff’s right to retain the bricks according to agreement.”

The creditor’s attachment was dissolved and the pledge maintained.

An example of this kind is furnished by Troplong, in treating of Art. 2076 of the Oode Napoleon — of which Art. 3162 of our Code is but a repetition — of a merchant in Beaune having pledged sixty thousand bottles of Burgundy wine to a merchant of Baden as security for a debt — the wine having been delivered to an agent of the pledgee, it having been agreed that the pledgor should give it necessary attention and care.

It so happened that the agent of the pledgee occasionally left the key of the vault in the possession of the pledgor, and on one occasion the latter removed some of the bottles of wine to his own premises, and subsequently to his surrender in insolvency the syndic insisted that the pledge was null and void on that account — the debtor and pledgor not having been dispossessed of the wine. But the validity of the pledge was maintained as against the creditors of the pledgor, in insolvency. Troplong, Nantissement, No. 311.

A like interpretation is given of the Code Napoleon by other French commentators. Dalloz Repertoire, Vol. 32, p. 455; Duranton, Vol. 18, Nos. 525 et seq.

The court in the Cavoroc case, citing two leading State decisions, express the further opinion on this question and say:

“So when the debtor is employed in the creditor’s service, his temporary use of the pledged article in the creditor’s business does not effect a restoration of the possession of the debtor. This is in accordance with the common and the civil law. Reeves vs Copper, 5 Bingham (N. C.), 136, was a ease of this kind. A sea' captain pledged his chronometer for a debt. He was afterward employed by the pledgee as master of one of his ships, and the chronometer was placed in his charge to be used on the voyage. It was held that the pledge was not lost. He recovered the chronometer as against a person to whom the master had pledged it a second time.

“In Hayes vs. Riddle (1 Sandiford, N. Y. 248) the plaintiff delivered to the defendant, at his request, a convertible bond of the New York &JErie Railroad Company (which had been pledged by the latter to the former) in order to get it exchanged for stock of the same company, which was returned and substituted for the bond in pledge. The defendant never returned, either the bond or the stock.

‘ ‘ The plaintiff brought action in trover against him for the bond, and recovered its value, being less than the debt for which it was pledged.”

Judge Story is in perfect accord with the views entertained by th.e Supreme Court, and in the course of an elaborate discussion of the question says:

“A possession is necessary to complete the title by pledge, so, by the oommon'law, the positive loss, or delivering back of the possession of the thing, with the consent■ of the pledgor, terminates his title. However, if the thing is delivered back to the owner for a temporary purpose only, and it is agreed to be redelivered by Mm, the pledgee may recover it against the owner, if he refuses to restore it after the purpose is fulfilled. So, if it be delivered back to the owner in a new character, as for example, as a special bailee or agent. In such a case the pledgee will still be entitled to the pledge, not only as against the owner, but also as against third persons; for, under such circumstances, the possession is perfectly consistent with the existence of the original right of the pledgee.” Story on Bailments, Sec. 299, citing various authorities.

In consideration of the authorities I have cited I think it can be safely affirmed that the pledge in favor of Mrs. Tassin was good and valid: (1) because the bonds were held by a third person agreed upon, with instructions to deliver on demand of the pledgee; (2) because they were deposited in a vault over which the debtor had no control, and in a bank box of which the third person agreed upon had the key; (3) because the pledgor had executed a power of attorney authorizing the pledgee to sell the thing pledged; (4) because the debtor had credited his books with the amount of the pledged col-laterals and also the creditor’s account; (5) because the third person claimed possession just before the pledgor’s death, and was allowed to have access to the pledged collaterals after Ms death — the safe and vault being voluntarily opened by the secretary of the insurance association, and the box containing the securities being unlocked by the third party in the presence of others and the secretary.

And, finally, if it be considered that the bonds were, after their deposit, in any manner in the possession or under the control of Pierre Lanaux, through De Jahan, it was only a precarious possession for the account of Mrs. Tassin, and which cannot be successfully opposed by the creditors of Lanaux as against Mrs. Tassin.

As the case as presented herein justifies and establishes the sufficiency and completeness of Mrs. Tassin’s pledge, our original opinion should to that extent be maintained; but as the proof fails, in my opinion, to show that the Hymels participated in the agreement selecting De Jahan as a third person to take and hold the collaterals specified, the contract of pledge as to them is lacking a vital element to give it force and efficacy as to third persons and creditors of Pierre Lanaux — though it was perfectly good and valid as between the parties.

The Code requires that there must be an actual delivery to the creditor or pledgee of the thing pledged. This is an essential to the completion of the pledge. It is the test of its efficacy.

But the Code states, as an exception to this general rule, that if the thing be placed and remain in the hands of a third person who is agreed upon by the parties, the privilege of the pledgee attaches to the thing pledged.

Having failed to participate in the agreement selecting DeJahan as custodian of the assets placed for the several accounts of the Hymels, their pledges were incomplete and they acquired no lien or privilege on said assets, and in this respect the opposition of creditors must be maintained, and to that extent our former opinion and de - cree should be amended, and as thus amended affirmed.

Mr. Justice McEnbrv concurs in this opinion with respect to the claim of Mrs. Tassin, but dissents from the views expressed as to other parties — maintaining the correctness of the original opinion of the court in its entirety.