58 So. 527 | La. | 1912
Plaintiff held a promissory note secured by mortgage, which he foreclosed. In, the act of mortgage, the mortgagor, C. D. Warner, waived his home-, stead right as follows;
“And the said C. D. Warner hereby waives his benefit of ’the homestead exemptions created in his favor by the Oonstitution of 1898, and of all other homestead laws, and now comes Mrs. Lena Warner, wife of G. D. Warner, and consents to the above waiver.”
Jones & Whitaker filed third oppositions claiming a preference, and George J. Reiley & Sons also filed opposition, claiming a privilege for lumber sold to defendant. The defendant in his answer claimed a homestead, as he is the head of a family in necessitous circumstances. To the claims of Reiley & Sons, a plea of prescription was filed. It was sustained.
The court rendered judgment in favor of Franklin Hardesty, plaintiff, and decreed that he be paid by preference over all other claimants out of the proceeds of the sale; and the court ordered that the claim of C. D. Warner be paid by preference on the balance of the proceeds of the sale in part satisfaction of his homestead, being an amount remaining after payment of Hardesty.
The third opponents, Jones & Whitaker, alleged that the clause waiving the homestead left it in doubt whether it was general or special. In addition, these opponents averred that the debtor left the homestead in search of means of livelihood, and, in oth
The defendant, Warner, testified:
“I reside on the place. It was sold in June, 1909. I had been there from 1900 or 1901. I left the 1st of September, 1909, and came back the 1st of February, 1911. I occupied that place as my bona fide home. I owned and occupied it. My occupation is that of a farmer. I have a wife and two children dependent on me for support. The debt which I incurred with Jones & Whitaker, for which they obtained judgment, was created against me while I was on the place. I never had any idea of abandoning my homestead at any time while away. From the time of my return until the seizure of the place I occupied the place with my family.”
Relative to the asserted abandonment of the homestead:
Judged under the terms of the cited decision, the defendant had not abandoned Ms home. The cause rests upon the intention to return, while he was away; his actual return and the fact that he was residing on the place when the third opponents sold to him on credit; and that he was a resident there when the place was seized.
The article of the Constitution ordains that:
“Any person entitled to a homestead may waive the same by signing with his wife, if she be not separated a mensa et thoro, and having it recorded • in the office of the recorder of mortgages; such waiver may be either special or general.” Article 246.
As the waiver was a part of an act of mortgage in favor of a creditor, it must be held to bear the imprint of the mortgage of which it forms part. We do not infer that it was the intention of the mortgagor to waive his homestead in favor of all creditors. There is nothing in the act of mortgage so indicating. No one is presumed to abandon his right without the least necessity.
The following, to which our attention is called by learned counsel for plaintiff, is pertinent:
“In a mortgage of real estate, the only effect of a release by the mortgagor and his wife of all rights to the homestead in a mortgaged premise is to subject the homestead, together' with the residue of the estate, to the payment of the mortgage debt.” Decennial Digest, vol. 10, p. 440, Homestead, par. 175d (Mass.).
“Under the Civil Code, par. 2863, authorizing a debtor to waive exemption, a waiver of homestead rights in an application of a general line of credit is not effectual to bar the debt- or’s right to homestead against a debt thereafter contracted.” Key No. Digest, vol. 9, p. 1458, Homestead, § 175.
In the act of mortgage, the first part recites that the debtor gives a mortgage to secure the amount. In another paragraph, he promises to pay, and further on, to carry out Ms obligation, he waives his homestead in favor of the mortgagees. If he had gone to the mortgage office and made a general declaration, it would be different, for then it would not be limited to the mortgage cred
The article of the Constitution gives rise to the decided impression that the waiver must be expressed as general in the act or general by repairing to the recorder’s office and having it recorded separately from any other act.
Judgment affirmed.
