Blouin v. Ledet

33 So. 741 | La. | 1903

PROYOSTT, J.

Defendant owned certain real estate, upon which there rested a conventional mortgage, first in rank, and a judicial mortgage, second in rank. To satisfy the conventional mortgage, the property was seized, and advertised to be sold, whereupon defendant filed a petition claiming that he had a homestead right upon the property, and that, after satisfying the conventional mortgage, the proceeds of the sale should be paid to him up to the amount of his homestead right of $2,000, in preference to the judicial mortgage creditor.

To support his claim defendant relies upon the homestead provisions of the Constitution of 1898. He fulfills all the conditions required as a basis for the claim under the Constitution of 1898. He is the head of a family, and has no property other than the one in question; but the judgment from the registry of which arose the judicial mortgage against which he invokes the homestead was rendered and recorded in 1893, when the homestead law in force was that contained in the Constitution of 1879, which made registry a condition precedent to the existence of homestead rights, and his homestead was never recorded. If his claim is good, therefore, the reason must be that the homestead provisions of the Oonstitution of 1898 have effect as against debts that were already in existence at the date of the adoption of the Constitution, and can divest mortgage rights already acquired at that date.

Defendant contends that to give them that operation would be only to affect the remedy, and not to impair the obligation itself of the debt, nor to divest the mortgage, within the sense of the Constitution of the United States. The question as to- the impairment of the obligation of contracts has been decided the other way -by the'Supreme Court of the United States (Edwards v. Kearzey, 96 U. S. 595, 24 L. Ed. 793), and, 'the matter involved being the interpretation of the federal Constitution, the decision is binding on this court; and, as to divesting attachment and judgment liens, even the courts that have given a retrospective operation to homestead laws have not gone so far as to permit the divestiture of liens. Am. & Eng. Ency. of Law (2d Ed.) vol. 15, p. 610. See, particularly, Cole v. La Chambre, 31 La. Ann. 41; Gunn v. Barry, 15 Wall. 622, 21 L. Ed. 212. In the cases of Robert v. Coco, 25 La. Ann. 199, and Doughty v. Sheriff, 27 La. Ann. 355, the court emphasized the fact that the judgment had not been recorded, so as to operate a lien.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed, with costs in both courts.