
    Mr Justice Provosty.
    Jas. F. Pierson vs Mrs. Lillie Carmouche
    March 1, 1920
   Tha Court of Appaala for tha Parish of Orlaana haa oartifiad to thla court for Inatruetlona tha following question;

*Uay a purohaaar on oredlt of noTabled proparty validly fira it in pledge to a third paraon, who known that ha haa not paid tha prioa (but la otharulaa in good faith), ao aa to vast to that in tha pledgee a right superioresf tha vendor, ahoaa privilege tharaupon aaaaaa (7) by reason of tha proparty having passed out of the possession of the vendeeT"

va anaver. yea. In Dreyfous vs Cade, 138 La. 298, thla question waa vary fully disouaaed, with full referenoe to autorltlea, and waa decided in tha affirmative.

Tha daclaiona which have appeared to our learned brethren of tha Court of Appaala to ba oppoaad to thla, wa have not found to ba ae in reality. They are Compton vs Dretlin and Jacobs, 118 La. 360; Fetter vs Field, 1 An. 80; Seeley vs Dumas, 48 An. 1404; Hewitt vs Williams, 48 An. 686; and Bres and O'Brien vs Cowan, 22 An. 438.

Tha first, Compton vs Dietlin and Jaoobs, involved tha ^yila-demeanor in trade and oonmeroe act," and the preaent caoa doce not ooma under thataot.

Tha next, Fetter vs Field is not only not oppoaad but la etrletly in lina. The vendee shipped tha goody and pledged tha bill of lading, and thla pledge was preferred to the vendor.beoauae tha delivery of tha bill of lading waa a delivery of tha goode,,by axpreas provision of Art. 3227 o< A 4lw Cod* the vendor*o privilege continues ¿¿/¿/¡¿/¿¿¿/¿¿¿¿¿¿/¿‡ t0 *xiet only ao long as the property sold "still remain* in the possession of the purchaser."

In seelig vs lxunas, the suit was in damages, ond^baséd on the fact that the property had not bean «old to Theresa Hamilton, but only leased, and that the purchaser from this lessee v;a$ ar/are of that fact. There was no attempt being made to enforce the privilege of the vendor. Very- true the court added thaf the suit 1n damage* might have been maintained even though the property had been not leased but sold to Theresa Hamilton; but this was on th* principle enforced in Irish vs Wright, 8 Rob, 428, that a person who fraudulently aids e debtor in placing his property beyound the reach of his creditors renders himself liable in damages to the creditors,

'«'he other cases did not involve the privilege of the vendor but that of the furnisher of supplies on the crops of the year, as to whivh the Code, Art* 3317, says that if rests not only on the crops but also on "the proceeds thereof", and that it "shall not be divested by any seizure and sale of the land while ths crop ip on it*" it was under this provision of the Code that these decisions v»*»r* rendered, see also Weill vs Kent, 62 An. 2139; National Bank vs Sullivan, 117 La. 163.

To the Honorable

Shr oüíNíJj.'J!; ü)U:<? OF i,'JUiól‘\l¡A

The undersigned, Judaea of the Court of Aneeal for the ¿'arlan of Orle ana, respoctfully o hf.'ipy and óubialt for Instructions the following question arising in, and (in our opinion’ll determlnativ of, a matter now pending before us, entitled:

No. 7437

Jas. F. Pierson

vs

Mrs. Lillie Carmouche

(Opposition of ...ax Barnett Furniture Co. Ltd. )

VIZ:

,J.U110H: aay a purchaser on credit of movable property validly give it in pledge to a thira person, who knows that he has not paid the prieeiout is otherwise in good faith). so as to vest in the pledgee a right superior to that of the vendor, whose privilege thereupon oeaBes(?'i by reason of the' property having passed oat of the possession of the vendee?

II

The .-natter is now before us on rehearing/. She faoto are fully set out in the opinion on file, oopy whereof wo include herein. They were practically undisputed, and the deeiuion hinged on two points(appearing) of law, one of which has now vanished from the MMt 4h*. tn points appearing from our Byllabus, sol as follows;

StLliBUS

1: Bowevar th# Sols, way bs as to the bolder of s negotiable sots talcing th# sea# free of unknown equltias whloh might axlat as to th# mortgage or privilege by whloh it 1# «asurad, that role oan have no applloatlon to non-nt-aotlabl# oradita, as to whloh the asalgnee ao qu irea only auoh rights as his author had* Kugler vs Taylor, 19 An 100.

E: Th# Jurisprudence formerly was that the purohaaer or pledgee of. personal property, who knew that his vendor or pledge# still owed a balanoe on the purohase price thereof, took th# proparty subjeot to the vendor's lien thereon; but that jurisprudence was changed in Dreyfous vs Cade, 138 La. 298, and auoh purohaaer or pledgee now takes the property free- from the vondor's lien.

OPIEIOB

This is a oonioet over the proceeds of certain furniture, Opponent oíalos under'a vendor’s privilege. Plaintiff olalma, 1st By virtue of a subrogation to a lessor's privilege; and End By virtue of a conventional pledge.

FIRST in August 1916 defendant leased certain premises fro. BBS' Tatar Jung and gave him her' nan-negotiable notos for the rent. At the same time she also-purchased on oredlt from Opponent the furnlturé herein aelsod and sold; bat before placing the famltore on the leased premises oppoe nent obtained from the lessor a Waiver of the lessor's privilege.

On May lat 191?, and again on Junelst, defendant being unable to pay her rent for the months of April and Hay, appealed for assistance to plaintiff, her legal adviser., the latter, being'In Ignorance of the waiver aforesaid paid the bank where the ieesor had deposited for collection, the rent notes given him by defendant; and thereupon took from her (the debtor) a aubftogatlon to the lessor's claim. (C.C. 2160, #2).

As we have sold before, the rent notes given by defendant wore not negotiable: for we find that they were • payable simply to Retar Jung, not to ordor or to bearer.

It le therefore wholly unnecessary to inquire Whether or not the holder of a negotiable note, secured by mortgage or privilege, takes the same, free Of any unknown equities whloh might exlat as to the mortgage or privilege by whlob it Is secured, . for however the rule may be as to negotiable Instruments, the reason thereof would be wholly Inapplicable to non-negotlablo oredits. As to.the latter, they do notfooae within the scope of the law llerohant, and whoever qoqairea auoh credits, aoqulros only #uch rights as his author had; since by the general law no one can transfer to another any greater fight than, he himself has.

See Kugler vs Taylor, 19 An 100.

aeoond: The evldenoe establishes, and plaintiff admit#, at A **— —'* - — ' ’ * ■ -• tha knew1 t the ,time Be took liege had been waived. oonventlonal pledge, he then Informed that the lessor’s prlv-

The Jurisprudence formerly was.that the purohaaer or pledgee of personal property who knew that his vendor «till owed a balance on the purchase price thereof, took the property subjeot to the Vendor's 1ion thereon, (See Beauregard Furniture Co vs Harry Katz et al, No. 7428 of our docket, and authorities there cited; especially Seelig vs Dumas, 48An 1494).

But that Jurisprudence was ohanged in Dreyfous vs Cade, 138 La 298, where the court very distinctly held that " a purchaser on Crbdlt afsovablo property may sell it to a third person who hop** that he has not paid the prioe, and the orlgiooJV'reador loses hie privilege."

(Syllabus #1)

We do not think the authorities olted by the court, support the proposition as stated; bat the ruling is too olear to be disregarded;

She Judgment appealed from mast therefore be affirmed,

JUP8M&BT APEHatSD.

Ill

She former Jurisprudence to which we had referenoe, is as follows:

1st Compton vs Dietli* & Jacobs, 118 La. 360 (367).
2nd Seelig vs Dumas, 48 An 1494 (1497).
3rd Hewitt vs Williams, 48 An 686 (693).
4th Bres & O'Brien vs Cowan, 22 An 438.
6th Fetter vs Field, 1 an 80.

We are well aware that these cases are not applicable where Articles of Commerce are parohassd for the purpose of resale, sines there ta then an implied waiver of the vendor's privilege; and *# ourselves have held in Snell vs Hart Jewelry Co. (14 Orleans Appeals 94) that even a donation passes the property free from the vendor's lien when the vendor knew that the purchaser bought for the express purpose of making a gift (and notwithstanding^. C. 1661).

xr

Plaintiff reliesffor the maintalnanoe of his conventional pledge, upon Dreyfous vs Cade, 138 La. 298, above mentioned. He also relies upon Florsheim Bros. vs Howelll, 33An 1184; but in that oase the court atreesed the faot that its decision rests apon the epeoial provision# of Act 66 of 1874, section 3, "a hard law bat written in language so plain os to leave no morn for doabt or evasion, --savoring of spoliation,"

She first of theso two cases involved « resale of the property, the aeoond a statutory pledge. In both, the lossof the vondor's pelvilege was attributed to the purchased property having passed out of the possession of the vendee.

She opponent relies on the five eases above cited.

le would feel Jactlfied in net following the Plorahela case for reasons readily perceivable: We hesitate about following the Dreyfaus oaee , partly because it (In effeot) overrules five well considered cases, without mentioning them (possibly because they were not called to yoar attention); andpartly beoauae that case was In1 part decided (and might have been deeided entirely) upon ether groando. Hence oar Question.

We transmit ^herewith the entire record and the briefs of sounscll to the.and that mp may be before you, should your honors think proper to "require that the whole record be sent ap for consideration, and' decide the whole matter in oontroverey in the same manner as If.It had been on appeal directly to the Supreme Court." Const. of 1898 . Art. 101.  