115 So. 655 | La. | 1928
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *460 These are three separate appeals, taken in three separate cases, entitled and numbered (in the court below) as above. They present two distinct issues, to be set forth hereafter. The appeal in the case first named brings up one of said issues; the appeal in the case next named brings up the other issue, entirely distinct from but somewhat dependent on the issue presented in the first named; the appeal in the last-named case simply brings up the last issue in another form, and is therefore wholly dependent on the result in the first two cases. All the facts are undisputed and are as follows:
On December 16, 1914, said Clemile Doucet died, intestate and fully solvent; and leaving the aforesaid 160 acres of land, on which he had resided with his wife and family until his death, apparently unincumbered and free of all debts.
At the time of his death he left, as his survivors, his widow in community, the aforesaid Mrs. Anna Lejeune, and nine children born of said marriage, some of them still minors at the time, since three of them were still minors at the time this litigation began (August 4, 1926), to wit: (1) Remy L. Doucet; (2) Alphonse N. Doucet; (3) Clemile Christy Doucet; (4) Marie Doucet; (5) Lydia Doucet; (6) Adam C. Doucet; (7) Walter W. Doucet; (8) Lillian Doucet; and (9) Ethel Doucet.
On October 24th, the makers of said notes had paid nothing on account thereof, or of the interest thereon, except $200 paid on July 17, 1923; and on November 13, 1924, said Jules Menou obtained judgment against them in solido for the full amount of said two notes ($10,000), with interest and attorney's fees, subject to a credit of $200 as aforesaid, to wit against Remy L. Doucet, Alphonse N. Doucet, and Clemile Christy Doucet, and against Mrs. Anna Lejeune, widow as aforesaid.
On the other hand, if said tract of land forms no part of the community, but was the separate property of the husband, Clemile Doucet, then his widow, Anna Lejeune, has no interest therein whatsoever, and Remy L., Alphonse N., and Clemile Christy Doucet own between them only a one-third interest in said land, the other two-thirds interest therein belonging entirely to the other six children. *463
"Under sections 2291, 2292, Rev. St. U.S. [43 USCA §§ 164, 171; U.S. Comp. St. §§ 4532, 4543], no rights accrue to the entryman who dies before the entry is perfected, and nothing passes under the inheritance law of the state."
That "no rights accrue to the entryman who dies before the entry is perfected," and that, therefore, there is nothing to pass under the inheritance law of the state, is the only and inevitable conclusion to be drawn from the citations relied upon, to wit, McCune v. Essig,
And the time when the land entered ceases to be the property of the United States and becomes the private property of the individual is when the final proof is made and the final certificate issued. See the authorities cited in Trumbull v. Sample,
Hence it has been held that where the land was entered during the marriage, but the final proof was made by the wife after the death of the husband, the land became the separate property of the wife and did not fall into the community. Richard v. Moore,
To follow the doctrine of that case would lead to this consequence, that if at the time Clemile Doucet entered the land he had been married to a first wife who had died or divorced him shortly afterwards and before he married Anna Lejeune, then the land would now belong one-half to that other woman, or to her children by him or by another, and one-half to the children of Clemile Doucet himself, to the entire exclusion of Anna Lejeune, who never could have acquired an interest in said land unless her husband died without completing the entry. And thus this remarkable state of affairs would have prevailed, that the first community would not have been destroyed by the dissolution of the first marriage, but only by the dissolution of the second marriage.
In Succession of Fay,
In this case the entry was made before the marriage, but the final proof was made and final certificate issued during the marriage, and hence the title to the land passed out of the United States and into the husband during the marriage. We therefore hold that the land was community property and not the separate property of the husband, *466 and the judgment below, which holds the contrary, will be reversed.
This means, of course, that Menou had a right to seize a two-thirds interest in the land, instead of only a one-third interest as he was allowed to do.
Her claim, if said land be found to be separate property, is based on that clause of the constitutional provision relative to homestead exemptions, reading as follows:
"The benefit of this exemption may be claimed by the surviving spouse, or minor child or children, of a deceased beneficiary. Const. 1921, art. 11, § 1, in fine; Const. 1898, art. 244; Const. 1879, art. 219."
This provision first appeared in the Constitution of 1879, and was evidently intended to meet the conditions prevailing and the ruling of this court in Briant v. Lyons, 29 La. Ann. 64, decided in 1877, by which, if the husband died pending his claim for the $2,000, under Act 52 of 1865, Ex. Sess. (R.S. § 1691), the widow and minor children were shut out and relegated to their claim for half that sum ($1,000) under the provisions of R.C.C. art. 3252.
With that in mind the constitutional provision interprets itself. Cf. Smith v. Jenkins,
"On the other hand, there is nothing in the Constitution to deprive the widow of the benefit of the exemption in her own right, being now the head of a family and having other persons dependent upon her for support." Smith v. Jenkins, supra; Tinney v. Vittur,
In all the cases cited the property had been community property, and the surviving spouse owned one half in full ownership and held the other half in usufruct, as in this case. Property so held is not held in indivision within the meaning of the jurisprudence declaring that homestead rights cannot be predicated on property held in indivision. The chief reason of that rule (see Henderson v. Hoy, 26 La. Ann. 156), to wit, that the sale of property held in indivision can always be forced, has no application to property held as above said. Succession of Glancey,
It is not necessary in this case to go as far as in Harrelson v. Webb,
Suffice it to say that we are of opinion that in this case the surviving widow is entitled to a homestead in her own right.
We are therefore of opinion that the judgment in the case secondly named in the caption, which allows Anna Lejeune $2,000 out of the proceeds of sale, should be affirmed.
It is true that, owing to the peculiar slant which this case has taken, the $2,000 allowed her appears to come mostly out of the share of her three major children, codebtors with herself; for the one-third interest which was sold by the sheriff and the proceeds of which are still in his hands, was sold as their property. But since her codebtors are without interest in the matter, and since she cannot get the amount twice, but only once, it is immaterial whether she get her $2,000 now and out of the one-third which has already been sold, or whether she shall wait until the other one-third be sold and take her $2,000 out of the whole proceeds. We will therefore make no change in the judgment since the result would be exactly the same in either case.
The judgments appealed from in the cases entitled Mrs. Anna Lejeune v. Louis Fontenot et al. and Jules Menou v. Remy L. Doucet et al. (Nos. 7443 and 6782 in the court below) are affirmed, the costs of the court below in both cases to be paid by said Jules Menou.
And it is further ordered that the costs of this appeal be paid one half by said Jules Menou and the other half by the plaintiffs in the case of Marie Doucet et al. v. Louis Fontenot et al.
OVERTON and LAND, JJ., dissent.
Addendum
I agree that the 160 acres of land acquired by Clemile Doucet under the homestead laws belonged not to him separately, by virtue of the homestead entry and settlement which began before he was married, but to the marital community existing between him and Anna Lejeune Doucet when the patent for the land was issued. It is well settled that land titles acquired by homestead entries are controlled by the laws of the United States until the title in the entryman is complete. It is only when the title has passed from the United States to the individual that "the land like all other property in the state is subject to state legislation." Buchser v. Buchser,
I concur also in the ruling that, even though the widow of Clemile Doucet is not the sole owner of the homestead, but owns only an undivided half interest in it, she is entitled to the homestead exemption allowed by section 1 of article 11 of the Constitution of 1921, to "every head of a family, or person having a * * * person or persons dependent on him or her for support." The reason why the children's joint ownership of a half of the property does not stand in the way of the widow's homestead exemption is that she has the usufruct of the children's share of the property, and her right of occupancy cannot be disturbed by a suit for partition. Inasmuch as the value of the widow's interest in the property exceeds $2,000, it is not exempt from seizure and sale to satisfy her debt, but, in lieu of such exemption, she is entitled to $2,000 out of the proceeds of a sale of her half interest in the property, in preference to the claim of the mortgage creditor. *471 She is not entitled to any part of the proceeds of a sale of the sixth interest — in the homestead — which belongs to her three sons who are liable jointly and in solido with her for the mortgage debt.
I concur, therefore, in the decree rendered in this case.