Mallon v. Gates, No. 839

No. 839 | La. | Jun 15, 1874

Ludeling, C. J.

Joseph Mallon confessed judgment- in a suit to enforce payment of a note secured by mortgage in July, 1872. In August, 1873, the judgment creditor caused execution to be issued, and the property of Joseph Mallon was seized arid advertised for sale. On the third of September á petition, in the name of Joseph Mallon and his wife, was filed, praying for an injunction to stop the sale of the plantation of Joseph Mallon, on-the grounds that they were entitled to a homestead, etc. The wife made the affidavit and executed the bond for the injunction, having been authorized to do so by the judge, on proof that the husband was absent.

There was judgment in favor of the wife fór-one hundred and sixty acres of the land, etc. The defendant appealed.

The following facts appear from the record: That the plantation seized belonged to the husband, the debtor; that he and his wife resided in Franklin more than a year preceding the seizure, and that the husband had left the State, apparently with the intention not to return tó St. Mary parish. It iurther appears that Mallon and wife have no children or other person directly and legally dependent upon them. It is therefore manifest^that they'have uo right to the benefit of the homestead act. Hut the husband, who alone cofild have asserted the right, if it existed, is not before the court, and we can not therefore decide anything to affect his rights. The wife has asserted no right, personal to herself in this suit, and she has no right to represent her husband in the matter, nor can she bind him by her acts.

It is therefore ordered and adjudged that the judgment of the district court be annulled, and that there be judgment in favor of the defendant against the plaintiff and her sureties on the injunction bond for $500 damages. It is further ordered that the costs in both courts be paid by the plaintiff. •