70 So. 848 | La. | 1916
Lead Opinion
His wife was living at the time the mortgage was given; and this property belonged to the community of acquets and gains existing between them. At the time the seizure was made, however, she had died, and the property belonged in indivisión to her heirs and opponent.
Plaintiffs invoke the principle that the homestead right is not allowed upon property held in indivisión. In Maxwell v. Roach, 106 La. 123, 30 South. 251, and Harrelson v. Webb, 124 La. 1013, 50 South. 883, 134 Am. St. Rep. 529. this was held not to apply in a case of this kind where the indivisión has been brought about by the death of one of the spouses.
“My daughter is 34 years old. She is unable to perform clerical work, and cannot do anything to earn her living, and depends entirely upon me for support. She is very delicate in health.”
We agree with the learned trial judge that this evidence shows the dependence of the daughter.
This com and hay was the corn and hay needed for feeding to the stock on the plantation for making the crop of the next year on the plantation, or, in other words, for keeping the plantation agoing. Such being the ease, this corn and hay is not liable to. the privilege of the third opponents. Citizens’ Bank v. Wiltz, 31 La. Ann. 244; Dunlap v. Berthelot, 122 La. 531, 47 South. 882. Those were cases involving the privilege of the furnisher of supplies, but the principle
Plaintiffs were not parties to the sequestration suit, and hence are not affected by anything that was done in it. So far as they are concerned, that suit is nonexistent.
The learned counsel for opponents say in their brief that the sequestration separated these things from the plantation as effectually as if they had been removed a thousand miles from it.
That is true, in a sense; but there is this difference: That the thousand miles removal might have prevented the seizure of the things as integral parts of the plantation, whereas they, remaining on the plantation, were seized and sold as forming part of it. The proceeding was by executory process, and these things could not have been seized at all excex>t as forming part of the plantation; and by filing the third opposition claiming the proceeds of the sale the opponents judicially recognized the validity of all the proceedings leading up to the sale; i. e., recognized the validity of the seizure of these things under plaintiffs’ writ. Such being the case, the sole question presented is as to the existence of the alleged privilege of opponents upon these things; and the questions whether the things were or were not liable to be seized or were or were not actually seized under plaintiffs' writ do not arise. By claiming the proceeds-of the sale oi>ponent has recognized the validity of the sale. This is elementary.
“One set of housing stands, one set of stands-for crusher, one gear for crusher spur, and one-shaft and coupling for crusher.”
The question is as to whether these things became incorporated into the machinery of the factory on the plantation — merged into it — so as to have become simply parts of it,, or retained their independent character.
The learned trial judge thought the latter; but we cannot agree with him. His. reason was that these parts could be separated without injury to the rest of the machinery, and that, as they were of standard make, they would not thereby be converted into mere scrap iron, but could be sold for incorporation into other machinery of the same kind. This reasoning would carry us too far. It would allow the windows and doors of a house to be lifted from, their hinges, railroad rails to be removed from a railroad, any part of standard machinery, be it even a nut or a bolt, to be-removed. We think, therefore, this case must fall under the doctrine of Swoop v. St. Martin, 110 La. 237, 34 South. 426. It is significant that these things had cost the-year before $715, and brought at the sheriff’s sale $200, going to show that they had lost their character of things of commerce.
The judgment appealed from is therefore affirmed, except in so far as sustaining the third opposition of Wm. H. Jeffries. In that respect it is set aside. This third opposition is dismissed at the cost of third opponent ; the costs of the appeal to be paid one-half by plaintiffs and one-half by Wm. H. Jeffries, third opponent
Rehearing
On Application for Rehearing.
The decree in this case is amended so as to make the costs of the appeal payable one-fourth by Wm. J. Jeffries and one-fourth by Olay and M. E. Roger, and a rehearing is refused.
