Caire & Graugnard v. Hickox

Supreme Court of Louisiana

Caire & Graugnard v. Hickox

67 So. 887, 136 La. 803, 1915 La. LEXIS 2071

CourtSupreme Court of Louisiana

DecidedFebruary 23, 1915

DocketNo. 20615

StatusPublished

Cited by4 cases

This text of 67 So. 887 (Caire & Graugnard v. Hickox) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Caire & Graugnard v. Hickox, 67 So. 887, 136 La. 803, 1915 La. LEXIS 2071 (La. 1915).

Pincite

Opinion

MONROE, C. J.

Plaintiffs obtained an order of seizure and sale upon certain matured notes for the aggregate amount of $55,000, secured by mortgage, by authentic act, importing confession of judgment, on Luckland Plantation, in the Parish of St. Mary, which notes and mortgage were executed by the defendant Mrs. L. S. Hickox, widow of Chas. R. I-Iickox, and Mrs. Rilma Sanders, wife of Dr. J. L. Caldwell. After the sale, Mrs. Hick-ox intervened and obtained an order directing the sheriff to retain out of the proceeds the sum of $2,000, with prospective interest, to satisfy a claim' of homestead exemption set up by her, under article 244 of the Constitution; her allegations in support of her claim being, in substance, that she is the owner in possession of said property,' that the same is her home, that she has an elderly aunt living with her, who is supported by and entirely dependent upon her, and that she has no other means or property.

Plaintiffs moved to rescind the order, upon the grounds that the mortgage sued on was executed by the intervener and Mrs. Caldwell, as owners in indivisión of the mortgaged property, and that intervener cannot now be heard to say, • to the prejudice of the rights of the mortgagee, that she is the sole owner of the same, that her aunt is not a “person” whose dependency upon her entitles her to the exemption claimed, that the property seized consisted of more than 1,000 acres, with a dwelling thereon, and that intervener, having permitted the whole of it to be sold, in globo, before setting up her claim, cannot now be heard in that behalf; and, the motion having been allowed, intervener prosecutes this appeal.

The act of mortgage sustains the firs'ground of the motion, which renders the consideration of the others unnecessary. “Property, while held in indivisión, cannot become affected by the homestead exemption.” Bank of Jeanerette v. Stansbury, 110 La. 301, 34 South. 452. And property which is not affected by such exemption, when mortgaged, cannot become so affected afterwards, to the prejudice of the mortgagee. Ellis v. Freyhan, 124 La. 53, 49 South. 975; Coltharp v. West, 127 La. 434, 53 South. 675. The cases of Garner v. Freeman, 118 La. 184, 42 South. 767, 118 Am. St. Rep. 361, and Harrelson v. [805]*805Webb, 124 La. 1007, 50 South. 833, 134 Am. St. Rep. 529, have no application to rights such as were acquired by plaintiff.

Judgment affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

MONROE, C. J.

Plaintiffs obtained an order of seizure and sale upon certain matured notes for the aggregate amount of $55,000, secured by mortgage, by authentic act, importing confession of judgment, on Luckland Plantation, in the Parish of St. Mary, which notes and mortgage were executed by the defendant Mrs. L. S. Hickox, widow of Chas. R. I-Iickox, and Mrs. Rilma Sanders, wife of Dr. J. L. Caldwell. After the sale, Mrs. Hick-ox intervened and obtained an order directing the sheriff to retain out of the proceeds the sum of $2,000, with prospective interest, to satisfy a claim' of homestead exemption set up by her, under article 244 of the Constitution; her allegations in support of her claim being, in substance, that she is the owner in possession of said property,' that the same is her home, that she has an elderly aunt living with her, who is supported by and entirely dependent upon her, and that she has no other means or property.

Plaintiffs moved to rescind the order, upon the grounds that the mortgage sued on was executed by the intervener and Mrs. Caldwell, as owners in indivisión of the mortgaged property, and that intervener cannot now be heard to say, • to the prejudice of the rights of the mortgagee, that she is the sole owner of the same, that her aunt is not a “person” whose dependency upon her entitles her to the exemption claimed, that the property seized consisted of more than 1,000 acres, with a dwelling thereon, and that intervener, having permitted the whole of it to be sold, in globo, before setting up her claim, cannot now be heard in that behalf; and, the motion having been allowed, intervener prosecutes this appeal.

The act of mortgage sustains the firs'ground of the motion, which renders the consideration of the others unnecessary. “Property, while held in indivisión, cannot become affected by the homestead exemption.” Bank of Jeanerette v. Stansbury, 110 La. 301, 34 South. 452. And property which is not affected by such exemption, when mortgaged, cannot become so affected afterwards, to the prejudice of the mortgagee. Ellis v. Freyhan, 124 La. 53, 49 South. 975; Coltharp v. West, 127 La. 434, 53 South. 675. The cases of Garner v. Freeman, 118 La. 184, 42 South. 767, 118 Am. St. Rep. 361, and Harrelson v. [805]*805Webb, 124 La. 1007, 50 South. 833, 134 Am. St. Rep. 529, have no application to rights such as were acquired by plaintiff.

Judgment affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

67 So. 887, 136 La. 803, 1915 La. LEXIS 2071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caire-graugnard-v-hickox-la-1915.

Opinion

Related

Cite This Page — Counsel Stack