Ellis v. J. Freyhan & Co.

Supreme Court of Louisiana

Ellis v. J. Freyhan & Co.

49 So. 975, 124 La. 53, 1909 La. LEXIS 423

CourtSupreme Court of Louisiana

DecidedJune 14, 1909

DocketNo. 17,478

StatusPublished

Cited by9 cases

This text of 49 So. 975 (Ellis v. J. Freyhan & Co.) 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

Ellis v. J. Freyhan & Co., 49 So. 975, 124 La. 53, 1909 La. LEXIS 423 (La. 1909).

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Opinion

PROVOSTY, J.

Plaintiff has enjoined the seizure of his property, claiming it is his homestead. At the time defendant obtained and recorded the judgment under which seizure has been made the property was not homestead. Plaintiff lived upon it; but he was unmarried, and had no one dependent upon him for support. The judicial mortgage resulting from the recordation of the judgment attached, therefore, fully and completely. Before the seizure, however, the property had become a homestead by the fulfillment of all the conditions requisite for making it such.

Therefore the question presented is whether the homestead exemption can be invoked as against a judicial mortgage which had already attached at the time the property became a homestead; or, in other words, whether homestead rights.can come into existence as against a judicial' mortgage resting upon the property’’. .The. question was squarely decided in the negative in the case of Taylor v. Saloy, 38 La. Ann. 62, and by parity of reasoning was decided in tbe same sense in the cases of Brannin v. Womble, 32 La. Ann. 805, Gilmer v. O’Neal, 32 La. Ann. 979, Soulier v. Benker, Sheriff, 37 La. Ann. 162, and Bank of Jeannerette v. Stansbury, 110 La. 301, 34 South. 452. Tbe decision to the contrary in Fuqua v. Chaffe, 26 La. Ann. 148, has been overwhelmingly overruled. What was said, arguendo, by Bermudez, G. J., in Brannin v. Womble, supra, cannot be allowed the weight of a precedent.

Judgment set aside, and injunction dissolved, and suit dismissed, with costs.

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PROVOSTY, J.

Plaintiff has enjoined the seizure of his property, claiming it is his homestead. At the time defendant obtained and recorded the judgment under which seizure has been made the property was not homestead. Plaintiff lived upon it; but he was unmarried, and had no one dependent upon him for support. The judicial mortgage resulting from the recordation of the judgment attached, therefore, fully and completely. Before the seizure, however, the property had become a homestead by the fulfillment of all the conditions requisite for making it such.

Therefore the question presented is whether the homestead exemption can be invoked as against a judicial mortgage which had already attached at the time the property became a homestead; or, in other words, whether homestead rights.can come into existence as against a judicial' mortgage resting upon the property’’. .The. question was squarely decided in the negative in the case of Taylor v. Saloy, 38 La. Ann. 62, and by parity of reasoning was decided in tbe same sense in the cases of Brannin v. Womble, 32 La. Ann. 805, Gilmer v. O’Neal, 32 La. Ann. 979, Soulier v. Benker, Sheriff, 37 La. Ann. 162, and Bank of Jeannerette v. Stansbury, 110 La. 301, 34 South. 452. Tbe decision to the contrary in Fuqua v. Chaffe, 26 La. Ann. 148, has been overwhelmingly overruled. What was said, arguendo, by Bermudez, G. J., in Brannin v. Womble, supra, cannot be allowed the weight of a precedent.

Judgment set aside, and injunction dissolved, and suit dismissed, with costs.

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Bluebook (online)

49 So. 975, 124 La. 53, 1909 La. LEXIS 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-j-freyhan-co-la-1909.

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