38 La. Ann. 713 | La. | 1886
Lead Opinion
On Motion to Dismiss Appeal.
The opinion of the Court was delivered by
Plaintiff requests us to dismiss this appeal on the ground that the amount in controversy is below the lower limit of the jurisdiction of this Court.
The trial was by jury, and there was a general verdict in favor of the plaintiff, without damages, and the defendants, Marx & Kempner, plaintiffs in execution, appealed.
It is not “the amount in dispute,” but the matter in dispute, in such case, that gives this Court appellate jurisdiction. Under the amendment of Article 81 of Constitution of .1879, this Court has appellate jurisdiction of “suits involving the rights to homesteads.” Act No. 125 of 1882.
In a recent case this Court said of this amendment: “It is over such eases of homesteads alone, as are mentioned in the present, Constitution, that this Court has exclusive jurisdiction. 37 Ann. 109, State ex rel. Davidson vs. Judge.
The motion is refused.
Opinion on the Merits
On this Mxorits.
I.
The following is a statement of this case :
The plaintiff alleges in substance that he is the owner of a house and lot in the town of Lake Charles, occupied by himself and family; that he is the head of a family dependent upon him for support; that he has set apart and registered this house and lot as a homestead; that this property is exempt from seizure and sale under the law of 1865, Articles 219 and 220 of the Constitution of 1879, and Act No. 114 of 1880; that he registered his homestead June 15, 1882; and that the judgmfent under which the seizure was made was rendered after the registry and setting apart of said property as a homestead.
The defendants’ answer, coupled with an exception of no ca.use of action, is an express denial that plaintiff is entitled to the homestead exemption, in bar of defendant’s claim; they aver that the debts, for which the judgments sought to be executed were obtained, wero contracted previous to the adoption of the Constitution of 1879; that no rights of homestead or exemptions from seizure and sale, as against
In the succession of Furniss, 34 Ann. 1013, this Court held : “Under the homestead provisions of the. Constitution of 1879, the exemptions therein provided only take effect from the date of registry, as provided by lawq and are inoperative against debts contracted prior to such registry.”
Parties invoking the protection of the homestead laws, which are in derogation of common rights and must be strictly construed, are required to prove that they come within both their spirit and letter. Galligan vs. Payne, 34 Ann. 1057, and authorities therein cited; 37 Ann. 263.
In Thomas vs. Guilbeau, 35 Ann. 927, this Court held: “Claims of homestead exemptions affecting debts and contracts which existed previous to the adoption of the Constitution of 1879, must be controlled by the legislation in force at the time the contract was entered into.” 34 Ann. 331, Poole vs. Cook; 32 Ann. 980, Gilmer vs. O’Neal.
In the case quoted from, the Court say: “ The debt which they seek to enforce was not created by the judgment of October, 1880, which conferred no new right, but merely recognized rights and obligations which were created by the Act * “ of June 26, 1877. Hence, the contract from which plaintiff’s obligation springs was made and entered into in 1877, and all homestead rights affecting the same must be governed by the laws then in force.” Page 929.
Plaintiff’s declaration of his homestead exemption of property involved in this controversy was filed for record, and recorded on the 15th of June, 1882.
The petition in the suit of Marx & Kempner vs. James A. Kinder, No. 598, recites that it was brought upon defendant’s promissory note for $247 50, bearing date October 17, 1877, and payable on the 1st of January, 1878, with interest from date, and the note is annexed; though judgment wms not signed until June 19, 1882.
The suit No. 599 was brought upon the joint note of Sam. Kinder and J. A. Kinder, for $431 51, bearing date September 30, 1877, and
The facts of this case are quite similar to those presented in the case of Thomas vs. Guilbeau, and the same ruling is applicable”.
II.
It has been frequently decided by our predecessors that the property exempted from seizure and sale under section 1691 of the Revised Statutes of 1870, which embodies the provisions of the homestead law of 1865, is predial and not urban. 25 Ann. 219; Crilly vs. Sheriff; 26 Ann. 645, Hargrove vs. Flournoy; 28 Ann. 575, Roberts vs. Gordy.
Our conclusion is that plaintiff’s homestead, asserted under both the Act of 1865 and the Constitution of 1879, can. be sustained under neither.
It is therefore ordered, adjudged and decreed that the verdict of the jury and the judgment of the district court appealed from be avoided, annulled and reversed; and, proceeding to render such judgment as should have been pronounced, it is ordered, adjudged and decreed that the demands of the plaintiff be rejected, and that he be taxed with the costs of both courts, and that the seizing creditors, Marx & Kempner, be permitted to proceed with the seizure and sale of the property, sale of which was enjoined, and according to law.
