The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-05-19
HOMESTEAD EXEMPTIONS.
The Eject Of their Waiver.
such waiver In an Act Of Mortgage Not
ginains ana not Enfcrcai,se.


fics 1Egan rendered the following decision.
No. 857u-wolf b Cerf Va. Mary L. Harvin and
husband, appellants from the e,xth Ju- |
iiicsl District Court, parish Of 3d. Helena.
This aetion IL against rnafried woman sep. |
arated Ia property from her h'ispanu. ~ y psss9
1,uop a pronisofy note and mortgage executed |
BIZ her ,euh the authorization 81 her husband,
but ,citho,tt that OF the Judge. ana upon small
balance Of account with plaintiffs, 1Herchants at
0syh Miss The ass AKA ses rs ,e ,scss
the note and mortgage, denied that she
b. plaintiffs, OF that she authorised
sy purchase s Nd sRsss,y I. dsssa ss
consideration of The note and mortgage enured
b, her separate b8nsft. The mortgage was by
pubic act, and contains The usual paots, and also
IN cypress waiver Of homestead exemption under
any existing or future laws Of the state. :.
The first question TO which our sttentien y
invited by the answer and the brief Of defend
ants counsel, is the effect OF sections e9sl, o..
and articles LAG and t27 Hev q. o., which gre pu.
ried women 10 contract debts aud bind their dotal
and rarapbernal property with the authorization
Of their husbands and Of the judge, ana upon we
certificate Of authorization OF the latter" Ibis
y not an open question: =.
II IL also immaterial whether. according 70
plaintiffs theory and evidence, the consideration
enured to her own advantage and that Oh het
separate property; whether, according 20 her
theory or statement, the mortgage was given TO
sssist her sons. or whether The debt was COM
srscted for the support and maintenance Of the
family. she being the sole property owner, ss we
The only remaining question is as TO the right
and power 10 waive the homestead exemption, as
wss done in this case. The determination Of
ih,s anestion il the more important because home
stead exemptions being comparatively recent In
Louisiana, there has been no Adjudication ny
this court Oh the subject. In other states " has
bean often considered. and The adindicatiens
nave been by no means uniform, while in most Ii
Il regulated by statute.
IN 4 majority of The States, however, II IL held
that such waiver IL Intellectual and will not be en-
ssrred, see Hn,ytb on Homestead and Exemp-
Mons. d, 542, citing is Gal. see. "a n. Y. 24g:
Wnw' prac. h. bH. 10 How, pfae. Hep. 2B2.
Am law Reg. tLa,) 1l2. Am. Law Reg. IN.
~ bs.l. 10 iowa 4li: 20 Iowa g78: 10 Iowa 245:
via. ida. 10 pick. %, q Uald. 2s3.
In Pennrylvanis, where the right Of waiver
soa,n. nat 4, Ia 70 been questioned before, in The
csse al Toyrealer w, Mack, 40 Penn. b., t3
wright, ss7. decided In 1865, The court says, III.
with the experience and observation we have had,
s,rst time. We would be very likely TO deny the
sipht ri wsivar aitpuethar and stick 10 the statute
IN il vrittpn. III crawford VA Lockwood,
How, Prac. Rep, b41 the court refused TO enforce
s,an AZ nsnportv from sate nm execution under the
laws ~ tha aiata.
Ia ffarner W.. Zeal. 10 How. prae, II, $40, the
tdebtor made A promjeHory note, and for the
raynHut ar tbe same agreed ITO waive oil ex-
emnton 10 property.s and the court said "Not
onip am III orjnin,, that The agreement in this
nota 10 waive ali exemptions 10 property creates
M astnnpel. but / 40 further and hold that ID
mat alsn br regarded in The eve OF the law aa
hsra onnress;os and uncouscionsble contract,
ana ,hat Il IL fatally void as In oontraventon Oh
shs snrit m onr statutas ana OF public policy"
In emiih Va. Newcomb. 81 Barb, 1863, the sa,ne
prineinla was affirmed. The note on which the
i,ag,,ant In th,a rsse was recovered expressly
waived ana renuIshed ''all right OF exemption
~ nranastv NAV have from execution on this
debit. The Judges all CONQUERED that person
onntract,nr fleht cannot agree with creditor
that In aase Of n.peyn emf, he shall be entitled
Ia law hid execution upon property exempt from
lew by the general laws of Che state. In Curtis
w. ulirjen. DO Iowa. &c. the same doctrine was
maintained. and such an agreement wae held
contrary 10 public policy.
The same author before referred TO-, 'Bmytb on
Homestead and Exemptions the latest and