The weekly Thibodaux sentinel and journal of the 8th Senatorial District. [volume] (Thibodaux, Lna. [i.e. La.]) 1875-1898, 1877-12-15
tComlnuuicatedl
The Law OF Homestead


tins doctrine The homestead
law emboloies in part, the public
right to waive in advance his
policy OF tue State, and rights ac
quired under it can not be waived
by any convention of parties"
The meaning is simply that no
man has a right of homestead,
and that any waiver which he
may make will be Intellectual, and
will not be enforced.
From this donctrine, Chief
Justice Manning and Associate
Justice Spencer, dissented. We
transcribe below the ma9nlti cent
opinion of the learned Chief JUS
tice, and call the attention ol the
reader to the cogent reasoning
admirable diction and elevated
tone of morality by which it is
characterized. 1t will be serve too,
the purpose of showing that the
ermine of the highest judicial dig
nifty in the State has been confer
red upon a man every way fitted
to adorn it. MORDAX
Dissenting Opinion.
Manning c. J.-Tha' enactment
Of homestead laws has been fire.
qnent of late years. The argus
ments in their support are spe-
cious, and attract to them popu-
lar favor. Whatever may be the
reasons that induce the legisla-
ture to enact them, our sole duty
is to ascertain what is the leglsla
tive will. and whtnascertained to
give effect to it.
All statutes which take proper
ty out OF commerce and attempt
to Impress upon; it the character
Of inalienabiiltv, and all statutes
which are in derogatlOn of CON
mon right, are to be strictly con
strued. The general law regula-
ting the relations Of debtor and
creditor is. that the prOnerty OF
the debtor is the common pledge
OF his creditors. Laws which ex>
empt any portion Of the debtors
property from the pursuit of the
creditor are exceptions to the
general rule and can not be rxten
ded by Implication. Thus, it has
been held by this court that pre-
dial property alone and not urban
is exempt to the value of two
thousand dollars under the sta.
tute of 1865. Cr;lIyts case, 81 An.
2l0 Hargroye vs., Iiournoy, 2G
An. 645.
The decision in orr SISTER
States upon many questions arts
ling under their homestead laws
are conflicting. This is due in
part to the animus which pei
vades the judicial construction of
them. An attempt has recent,
been made(Smyth on;Homestead)
to systematic this, branch of mo
dern law; and the writer points
ont witi:.aoeuracy the liSsonant
character lstiCs Of the laws IN the
states, showing the variant rules
that have been adopted.
y have held that, a mortgage
executed b.y debtor upon the
only land he owned, which IL.
quantity and yalue was less than,
that exempted by our statute.
could not be enforced. Van Vic
kle Us Landry, % An. $50. LII
that case, we were strongly pres
sed to restrict the operation OF
the law to the time when the
lard is occupied as homestead.
and my brother Spencer APPROX.
ed that limitation aud qualifca>
ton of the debtors right Of ex-
emptlOn. and dissented from the
opinion of the court. There was
certainly ample room fo1 differ.
ence of opinion on that question:
and the same writer, to whose
work illusions was inst now
made, informs us that that view
still obtains in IA few Of the States
though the more recent view he
says (Smyth, Sections 800, $40. ]
is that expressed by a majority
OF the Court III that case.
= En- rendering tie opinion of the
cOnrt | disclosed a mental oscii.
lation that was personal to my
self upon the point involved,
which was finally determined by
the influence of the principle Of
stare decisis. But we are asked to
go still further now. Then welpld
that the debtor could not I've bre-
sI'ncd to waive his legal right.
Now we are required to disregard
his express waiver. | can not Az.
sent to that doctrine. /:
The chief ground and the ONLY
tenable one on which that doc
trlne can rest here is the assumed
public policy of the law, for there
is nc expression in our statute
that warrants, or | would rather
say comprls that construction.