
    
      REPPLIER vs. SYNDICS OF GOW.
    
    If the- wife has no property at the time of her marriage, and until the failure of herself and husband, the goods she attempted to- pledge made part of a stock which was managed by the husband under her name, who acted as owner of it, except in the case of the pledge in which he is named as a third person to hold the goods, which he continued to retail as before, and there is no proof of a separation of property between them, it cannot be concluded that the stock of goods were other than community property. In such a case the husband cannot be considered as a third person holding the property for the pledgee.
    Appeal from the court of the first district.
    The plaintiff claimed to be placed on the bilan of the insolvents as a privileged creditor, by virtue of an act, wherein the wife, one of the insolvents to secure the payment of six thousand dollars, represented herself as a public 1 , . / merchant, and pledged to him a slave and all her stock in trade. In the act it was stipulated that the goods pledged were put and should remain in the possession of the husband as a third person agreed upon by the parties. The act was passed on the twenty-eight of July 1829, and the failure of the husband and Wife took place in November of the same year* The business of the store, buying and selling goods, had been conducted entirely by the husband in the name of his wife prior to the execution of the act of pledge, and he continued in the same manner to transact the business up to the time of the failure. There was no ■evidence that the wife was possessed of any property at the time of her marriage, or that she had subsequently acquired any either by donation or inheritance. The eourt below dismissed the -opposition,, and .the plaintiff appealed.
    Duncan, for appellant.
    The error of the court below is this, that the act of pledge making full faith between the parties to it, and not entered into at a suspicious time is binding on the creditors, and ¡therefore Eepplier is entitled to be placed on .the tableau, as a privileged creditor, for the fall amount of Proceeds of the sale of the goods pledged to him. C. C. art. 3121, 3122, 3123, 3124, and 3125. Martin's Reports, n. s. vol. 5, p. 618.
    Preston, contra.
    This case presents a question of fact, whether the pledgee was put into the possession of the pledge, and the decision of the inferior court should prevail as to the fact of possession. The goods were changed every day as appears by the testimony, and intended to be thus changed from the very nature of the business, being a retail store. All the property pledged was acquired after the marriage, and therefore belonged to the community existing between the. husband and wife, and of which the administration belonged to the husband. C. C. art. 2369, 2371, 2373. He is therefore in the act produced the real pledgor, and by the very act is to remain in the possession of the pledge. But possession by the creditor of the thing pledged is of the essence of the contract of pledge. C. C. art. 3119, 3129. The principle is extended to the antichrisis as well as the pawn. C. C. art. 3146, 3148, 313.1, 3133, 3135, and 3140. As to the necessity of actual possession in the creditor, and this possession must be real, not constructive. 8 Mart. R. 57, 58.
   Mathews, J.

delivered the opinion of the court. In this case the opposing creditor claims a privilege on the estate of the insolvents to the amount of six thousand dollars, alleging, that property to that amount had been pledged to him by Mrs. Gow, who represented herself in the act by which the pledge was made as a publie merchant. He is placed on the bilan as a privileged creditor oniy for one thousand one hundred and ninety-three dollars and twenty-two cents. And made opposition to its homo-logation, which being overruled in the court below, he took the present appeal.

In support of the privilege claimed by the appellant, reliance is had on the notarial act by which a slave and personal property were pledged for the amount claimed.

In opposition to this claim of privilege, it is contended on the part of the syndics

1. That the goods pledged or given in pawn were never delivered to the pledgee ar any third person to be held for him.

2. That the act of pledge was made at a suspicious time, and under fraudulent circumstances.

The evidence of. the case shows, that Mrs. Gow had no property at the time of her marriage; that from the eighteenth of February 1829, until the failure of her and husband in November of the same year, the business relating to the store of goods which she undertook to pledge to the appellant in July, (about three months previous to the cession of property made by the insolvents) was carried on in her name, by the agency of her husband; who seems to have acted in all things relative to this commercial business as owner of the goods, except the single act by which Mrs. Gow entered into the contract of pledge with the present opposing creditor.

By this act her husband was substituted by the consent of the contracting parlies as a third person to hold the property pledged, he continued afterwards to retail the goods of the store in the ordinary mode of doing sueh business. The reeord affords no evidence of a separation of property between Gow and his wife, previous to the time at ■which she assumed the character of a public merchant and sole trader. These facts preclude the possibility of belief, that the capital by which this commerce was carried on was other than the common property of the husband and wife, or perhaps that of the former alone. In either circumstances he cannot be considered as a third person capable of holding it for the creditor to whom the pledge was given, in conformity with the provision of the art. 3129 of the L. C.

If the wife has no property at the time of her marriage, & until the failure of herself and husband, the goods she attempted to pledge made part of a stock which was managed by the husband under her name, who acted as owner of it, except in the case of the pledge in which he is named as a third person to hold the goods, which he continued to retail as before, and there is no proof of a separation of property between them, it cannot be concluded that the stock of goods were other than community property. In such a case the husband cannot be considered as a third person holding the property for the pledgee.

if it was property common as being ac-quests and gains, the husband had a right to administer and dispose of it as his own. Considered as his biens propres the wife had still less right to assume over it the authority of an owner. As we are clearly of opinion that the contract of pledge or pawn, from all the circumstances attending if, gives no privilege of preference to the appellant; it is unnecessary to investigate the other grounds by which his claim would probably be equally defeated.

It is thérefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  