New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-12-21
family, the real value Of which is less than

! family, the real value of which is less than
| $4,000.
Answering this rule, the plaintiff appears
| by counsel, and reserving the benefit of all
exceptions previously urged, denies all and
singular plaintiffs allegations, and prays
that the rule be dismissed with costs, and
for trial by jury, the court refusing to
| grant It, the proceeding being summary IN
its nature.
The proof in the case fully substantiates
the fact that the property in question is
and has been the residence Of the defendant
| for four or five years.
That he has no other, and that il is not
| worth $4,000 Section 1881, Rays Revised
| Statutes reads as follows: :. In addition to
! the property and effects now exempt from
seizure and sale, under execution, one hun
| dred and sixty acres of ground, and the
| buildings and improvements thereon, occu-
pied as a residence, and bona fde owned
| by the debtor, having family, or mother,
| or father, or person or persons dependent
| on him for support; also. one work horse,
| one wagon or cart, one yoke OF oxen, two
| cows and calves, twenty-five head of hogs,
| or one thousand pounds of bacon, or equiv
| alent in pork and, if farmer, the neces-
sary quantity of corn and fodder for the
current year; provided that the property
| herein declared to be exempt from seizure
and sale does not exceed in value $4,000,
and, in case of excess any sale thereof I'm
| der execution shall be taken from the lot
OF ground and buildings herein mentioned,
and not from the other property herein
mentioned as being exempt from seizure
and sale"
"And provided further, that no debtor
shall be entitled to the exemption provided
for in this section, whose wife shall own,
in her own right, and be in the actual en-
joyment of property worth more than
$1,000" grave and important question
presents itself here, and although it has
not been expressly raised by the pleadings,
we nevertheless feel it incumbent on the
court to meet, discuss and settle it, SO far
as it lies in our power to do so.
How far, to what extent, may debtors
avail themselves of this act of the extra
session of A. d. 1865 land which has been
readOpted with the Code, in which it now
stands incorpOrated) to avoid the payment
of debts honestly contracted by creditors
on the basis of mortgage Of property oc-
cupied as a homestead, and whose value is
less than $4,000.
1t is generally understood, and so de-
clared, thai the property of the debtor is
the common pledge of his creditors. We're
it otherwise, much of the security which
now stimulates enterprise, and serves to
prompt, and consequently to multiply con-
tracts, would disappear, leaving the great
mass of our people, who under some cir
cumstanceB may claim tho protection of the
law, without the means Of relief. even in the
direst necessity. Who would loan money
or give credit if property Of the beneficiary
could under no circumstances be made
liable. That moment it becomes an estab-
hshed theory of the law that debtor, the
master Of his property, can not, even when
he would, mortgage it to raise money for
the advancement of his own fortune and
the maintenance OF his family, that moment
will it become burden to him, and the law
which was intended for his protection from
restitution and want prove the worst of de-
| lusiOns
There is nothing in the law under c0nsid-
GRAFTON which does Tor was intended toy
prevent or prohibit persons from voluntary
mortgaging property. 1t simply exempts
certain amount of property from seizure
which, but for its existence, might be sold
nolens volens for the payments obtained on
any kind of debt. Our code, article 1901,
declares that agreements legally entered
into have the effect of laws on those who
have formed them. they can not be re-
voked.
In this case we are clearly of opinion that
the homestead right has been waived by
the defendant in giving the mortgage on
the property in question, and that it is La
BILE for the debt.
Seventh District Court.
By act No. of the present sitting Iegis"
Iature, creating the Superior District Court.
this court was abolished; and although
formally opened and adjourned for a few
days after the passage of the act, it has
now virtually ceased to be. All the eases
flied therein are being transferred to the
Fourth District Court, and in day or two
at the farthest its chambers vii! be tenant
less.
Sheriff Fouriet. an old-time attache Of the
tribunal, is still the nominal crier OF the
court, but there being nothing for him to
cry about, he contents himself by roaming
sadly and silently through the deserted
halls, mourning over departed glores.