75 So. 840 | La. | 1917
Statement of the Case.
The plaintiff instituted ex-ecutory proceedings against the defendant on five promissory notes for $1,000 each, secured by mortgage and vendor’s lien on Made-wood plantation, having an area of 2,734 acres. The plaintiff then held and owned seven other notes for $1,000 each, and five others for $4,800 each; all 12 notes being secured by the same mortgage and vendor’s lien. The plaintiff also held and owned a note for $7,616.05, secured by a second mortgage, and a note for $5,000, secured by a third mortgage, on Madewood plantation.
The plantation having been seized and advertised for sale, the defendant filed a peti
The bank was not required to, and did not, plead to the petition of opposition claiming the homestead exemption until the sheriff had sold the plantation. The bank then filed an exception of no cause of action, and, with reservation of that plea, answered the petition of the homestead claimant and alleged that he had, by allowing his residence and the 160 acres of land on which it stood to be sold with the entire plantation and without a separate appraisement of the residence and 160 acres of land, lost whatever homestead exemption he might have had before the sale. The bank therefore claimed that the surplus of $2,000 held by the slier-tiff should be paid to the bank in part satisfaction of the indebtedness secured by the special mortgages in favor of the bank.
It was and is admitted that the plaintiff and his wife had their residence on the Madewood plantation, that neither of them owned any other property, that she was dependent upon him for support, and that therefore he was and is entitled to the homestead exemption unless the same was lost or forfeited by his failure to demand, before the sale, that 160 acres of the land on which the residence is situated be segregated, and appraised separately from the remaining part of the plantation,
Madewood plantation is described as having a front of about 16% arpents (about 35 linear acres) on Bayou Lafourche. It was proven on the trial, and it is not contradicted or disputed, that the residence (which is situated on the front of the plantation), together with 160 acres of the land extending beside and to the rear of it, was worth, when the plantation was sold by the sheriff, more than $10,000. It is contended, in the brief filed on behalf of the bank, that, as the entire plantation, containing 2,734 acres, was sold for $46,084.10, or at the rate of $16,855 per acre, it must be presumed that the residence and 160 acres of land on which it is situated was sold at the same
Opinion.
The learned judge of the district court, in his reasons for judgment, concedes that the defendant was not entitled to have 160 acres of the land, with the residence on it, segregated and offered for sale separately, because 160 acres of the land, with the residence on it, was worth more than $2,000, and was therefore not exempt from seizure and sale. The learned judge was of the opinion, however, that the defendant should have de
It does not appear to have been contemplated, in the provisions of the Constitution exempting homesteads from seizure and sale, that a debtor might be required to carve out and segregate from a larger tract of land 160 acres with his residence on it. The supposition apparently was and is that the debt- or would prefer $2,000 in money to a homestead worth less than that sum. In other words, if the debtor should prefer to carve out and segregate a tract of 160 acres or less, with his residence on it, and claim the exemption in kind, he would have to take a tract of land so small that it would be worth not more than $2,000, otherwise he would accomplish nothing by the segregation.
It was not held to have been necessary, in Glenn v. Bresnan, 123 La. 1014, 49 South. 690, nor in Abbott v. Heald, 128 La. 718, 55 South. 28 (in both of which cases the area of the homestead exceeded 160 acres), that the debtor should have demanded a separate appraisement of 160 acres of land with his residence on it, to preserve his right to $2,-000 of the proceeds of the sheriff’s sale of the entire homestead.
The judgment rendered in this case seems to rest upon an erroneous application of the doctrine of the marshaling of assets and securities. We are not aware of any case in which that doctrine has been applied by this court to the prejudice of a homestead exemption. There is no reason nor authority for invoking the doctrine of marshaling of assets and securities, or for applying any other rule of equity, to determine whether a debtor whose homestead has been seized and sold for more than $2,000 is entitled to that amount of the proceeds of the sale, in the light, or instead, of the plain and positive provisions of the Constitution on that subject. The doctrine of marshaling assets and securities, however, has been applied
"A debtor who has mortgaged an existing homestead will be heard, upon a marshaling of securities, to insist that recourse shall be had last to the homestead property; and a lien-holder, whose security affects the homestead with other land, will, at the instance of the debtor, be compelled to resort first to the other lands, even though, by so doing the security of still other creditors upon such other lands is impaired or destroyed.”
In the note at the end of the decision, from the syllabus of which the above quotation is taken, 17 Ann. Cas. 1061, under the heading Marshaling Assets in Respect to Homestead Lands as between Creditors — in the Absence of Statute — this is said:
“While the authorities upon the question are not entirely harmonious, it is held in most jurisdictions that the equitable doctrine of n?arshaling assets — whereby a creditor having a claim against a single fund is entitled to compel another creditor having a claim against such fund and also against other property of the common debtor to exhaust the latter fund before resorting to the doubly charged property for the satisfaction of his claim — will not be applied to the prejudice of a claim of homestead. Accordingly, in such jurisdictions, a creditor having a claim enforceable against a homestead and also against other property cannot be compelled by another creditor having a claim only against the latter property to resort first to the homestead for payment and thus leave the other property, so far as not needed to supply a deficiency, subject to the less favored creditor’s claim; and this is true, although the result is to secure payment to the creditor having a claim against the homestead to the exclusion of the other creditors.”
The provisions of our Constitution on the subject of the homestead exemption are not opposed to the equitable doctrine of marshaling assets, as expressed in the opinions quoted above. On the contrary, if we apply that doctrine here, the situation is this: There are two debts due by Delaune to the bank. One of the debts had to be paid in preference or to the prejudice of Delaune’s right to receive $2,000 of the proceeds of the sale of his homestead. The other debt was subordinate to Delaune’s right to receive the $2,000. The homestead, being of such area and value that it was not exempt from seizure and sale for any debt, was seized and sold by the sheriff for an amount sufficient to pay the first or preferred debt due to the bank and to pay the $2,000 claimed by Delaune. Of the proceeds of the sale of the entire plantation, ICO acres with the residence on it contributed more than $2,000. The question then is, Shall that’ surplus of $2,000, after paying the preferred claim of the bank, be regarded as part of the proceeds of the sale of the 160 acres of land with the residence on it, or as part of the proceeds of the sale of the other part of the plantation? The answer is that the debtor was not entitled to an exemption from seizure and sale of 160 acres of the land with his residence on it, because its value exceeded $2,000. All that he was entitled to is $2,000 of the proceeds of the sale of his homestead, regardless of its area, to the prejudice of the bank’s second or inferior moi-tgage claim. The fact that the homestead contained more than 160 acres of land is of no importance, because 160 acres with the residence on it was worth more than $2,000, and was not exempt from seizure and sale.
The judgment appealed from is annulled, and it is now ordered, adjudged, and decreed that the defendant or opponent, Alcee E. Delaune, be paid by the sherilr the $2,000 retained by him under the orders of the district court; and that the plaintiff, Bank of Napoleonville, pay the costs of this opposition in both courts.