Pugh v. Hunter , 150 La. 275 ( 1922 )

PROVOSTY, J.

Defendant’s husband deeded the plaintiff the tract of land upon which he and she lived. The consideration of the deed was the assumption by the plaintiff of the payment of two mortgages resting upon the property, one for $1,009, and one for $435. The former was due to a commercial firm composed of plaintiff and his brother, and the latter to a local bank. At the time of the execution of this deed the husband was in jail, and, on being bailed (plaintiff signing the bond), he left for parts unknown, and is at present a fugitive from justice.

The wife continued in undisturbed possession and enjoyment of the land until the filing of the present suit, two years and three months after the execution of the said deed. The object of the suit is to compel her to surrender possession. She pleads that the $1,000 mortgage was not due, that her husband had given same under duress, and, moreover, that the same was null because the property was their homestead, and that, as a consequence, the said deed was null.

Assuming that the wife has a standing for urging these defenses, we will proceed to consider them.

The name of defendant appears to the act of mortgage for waiving the homestead, but she denies that she signed the act. Be that as it may, the evidence shows conclusively that the debt for which the mortgage was given was due, and that the mortgage was freely given. The mortgage to the bank, the payment of which the plaintiff assumed, is not challenged.

[1-3] While the law’ does not allow the husband to mortgage the homestead without the consent of the wife, it allows him to sell it; and a dation en paiement cannot, in the present connection, be differentiated from a sale. The Code treats of it under the title of “Sale,” and article 2659 declares that it “is subjected to all the rules which govern the ordinary contract of sale.” The only difference between them is that, unlike sale, it cannot be perfected by mere consent without delivery, and that therefore the thing sold is at the risk of the seller until delivery, and may, until then, be seized by the creditors of the seller — differences which can have no influence in the present case. The operation of the homestead law is Simply to exempt from seizure and there is no seizure when there has been a sale or dation en paiement.

The judgment of the district court in favor of plaintiff is affirmed. Defendant to X)ay the costs of appeal.

DAWKINS, J., recused.