Van Wickle v. Landry , 29 La. Ann. 330 ( 1877 )

The opinion of the court was delivered by

Manning, C. J.

This suit is upon a promissory note of defendant, the payment of which is secured by a mortgage upon a tract of land containing about sixty-seven acres. The plaintiff asks a payment for the amount of the note and interest, and for the recognition and enforcement of the mortgage.

The defendant admits the execution 'of the note and mortgage, and denies that the mortgage can be recognized now or enforced hereafter, because the property is exempt from seizure by the, provisions of the homestead act of 1865. Rev. Stat. of 1870, sec. 1691.

The court a qua rendered a personal judgment against the defendant for the amount of the note and interest, and sustained his plea of exemption of the land and improvements from seizure.

If this were a nova quaestio in this court, whether the execution of a mortgage by a debtor is not of itself a waiver of the exemption of the property mortgage, we should be inclined to give to this deliberate act of mortgage a significance and effect in keeping with the express declarations of the mortgager, but the scope and effect of the act providing for the exemption has been too often adjudicated by this court to permit its consideration as an original proposition, and it is in deference to the doctrine of stare clecisis that wo adhere to the ruling already made.

The proof sustains the plea of exemption. The defendant has.no other property, nor has his wife, and the land and improvements are not worth more than six hundred dollars. The quantity is less than that allowed in the act. The defendant is the bona fide owner of it, and is the head of a family, and has young children dependent on him for a support, and ho occupies it as ahorne. Plaintiff insists that the judgment should restrict the operation of the exemption to the period when the property in question shall be used as a homestead. It is conceded that a party, in whose favor a certain quantity of property has been adjudicated as exempt from seizure, may sell the exempted property, and his vendee would acquire a title, unincumbered by the mortgage granted before such adjudication. It would seem then that the judgment of exemption is a perpetual bar to the enforcement of that mortgage. The most usual form in which these claims for exemption have come before this court has been an injunction by the debtor, restraining the creditor from subjecting, or attempting to subject, the exempted property to satisfaction of his judgment, and the decree of this court has been a perpetuation of the injunction. Leblanc vs. St. Germain, 23 An. 289. Robert vs. Coco, idem, 199.

If we can not decree the enforcement of the mortgage now because of a legal obstacle, if the law exempts the property from seizure so unqualifiedly that a mortgage voluntarily imposed on it by the debtor is held not to bind it, and if the exemption is so complete that the owner-may convey the property by an unincumbered title, it would seem'that no future contingency can revivify a mortgage thus declared to be extinct. A mortgage which no court can enforce, when its enforcement is judicially demanded, can not have such validity and vitality as to entitle it to recognition with a view to its future enforcement upon the happening of an uncertain contingency. The judgments of courts should not bo .temporary, contingent, or conditional.

The interpretation of the homestead act by this court assures to the debtor, who proves himself to be within its provisions, property of a defined quantity and value, in spite of his own efforts to incumber it, and •even annuls the lien himseif has placed upon it. The provision thus made for him was intended to be permanent, and can not bo restricted by the uncertain contingencies of the future.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court is affirmed with costs.