Hardin v. Wolf & Cerf

29 La. Ann. 333

Opinions

'The opinion of the' court was delivered by

Egan, J.

This action is against a married woman separated in property from her husband. It is based upon a promissory note and mortgage executed by her, with the authorization of her husband, but without that of the judge, and upon a small balance of account with plaintiffs’ merchants at Osyka, Mississippi. The defendant pleaded the want of authority to contract the debt, or to execute the note and mortgage, denied that she purchased the goods, etc., as alleged by plaintiffs, or that she authorized their purchase, and specially denied that the articles named in the account of plaintiffs, or the consideration of the note and mortgage, inured to her separate benefit. The mortgage was by public act, and contains the usual pacts, and also an express waiver of all claim of homestead exemption under any existing or future laws of the State.

The first question to which our attention is invited by the answer and the brief of defendant’s counsel is the effect of section 3981, 3 R. S., and arts. 126 and 127, R. C. C., which are but a re-enactment of the act of 1855, “ to enable married women to contract debts and bind their dotal and paraphernal property with the authorization of their husbands and of the judge, and upon the certificate of authorization of the latter.” This is not an open question. In the case of Rice vs. Alexander, 15 An. 54, it was held “ that the law, as it stood, in regard to the contracts of married women, previous to the act of 1855 referred to, remains unchanged, except that a married w,oman taking the benefit of that act is placed on the footing of a femme sole, and her contract, made with the judge’s authorization under the statute, is sufficient, or, in the language of the act, full proof ” against her, while'under the general jurisprudence those who deal with a married woman are bound to see and prove that the contract made with her inures to her benefit. The authority to execute the note and mortgage in the case at bar was given by the husband, who signed both with the wife for that purpose. It remains, then, to inquire whether the plaintiffs have shown sufficiently the liability of the wife defendant by evidence outside of the note and mortgage. The husband is deaf and dumb, and without property or means of support of himself or family, the wife is separate in property from him, and owns the only property in the family, consisting of a tract of land upon which they reside, and which, in the years 1873-74, was cultivated by two sons of the family for the common benefit and support. Early in 1873 the defendant, Mrs. Hardin, gave plaintiffs a mortgage upon her land to secure them for advances of supplies, etc., to be made for the use of the plantation and family.

The evidence shows that these supplies were furnished accordingly, and that subsequently the mortgage and note now sued on were given with the husband’s authorization, in lieu of the original mortgage, which was given by the wife alone, without the husband’s authorization, and to cure that defect. The wife, whose testimony was taken in the case, admits signing the mortgage, and that she signed it supposing it might assist her sons in cultivating the crop; that the family were supported by the'farm; that she relied on the revenues arising- from the crops for support, and that no member of the family owned or possessed any lands or real estate. It is further shown that she subsequently acknowledged the indebtedness when the account was shown her, and begged indulgence when plaintiffs threatened to foreclose the mortgage. It is quite likely that the plaintiffe took advantage of the necessities of the family, and also took into account the risk, and charged exorbitant prices. The defense was not, however, based upon this ground, nor does the evidence enable us to determine it, much as we would feel disposed to do so. It is shown, however, that the defendant was separate in property, was the sole property owner, that the credit was given to her, and articles for the use of the family and plantation furnished upon the faith of that credit, and that her husband had nothing and no means of support. R. C. C., article 2435, provides “ that the wife who has obtained the separation of. property must contribute in proportion to her fortune and to that of her husband both to the household expenses and to those of the education of their children.” And again: “ She is bound to support those expenses alone if there remains nothing to her husband; and even when the husband has property, if all that of the wife be paraphernal and she has reserved to herself the administration of it, she ought to bear a proportion of the marriage charges equal, if need be, to one-half her income.” R. C. C. 2389. She may, also, with the authorization of her husband, bind herself as surety for any other person than her husband. 2 An. 903; 5 An. 369; 14 An. 15. Her separate property is also liable for her frauds without reference to the question of authorization. 2 An. 1; 6 An. 56; 10 An. 433. Under this principle, having induced the credit, she would be bound, and her separate property liable. It is also immaterial whether, according to plaintiffs’ theory and evidence, the consideration inured to her own advantage and that of her separate property, whether, according to her theory or statement, the mortgage was given to assist her sons, or whether the debt was contracted for the support and maintenance of the family, she being the sole property owner, as we have seen.

The only remaining question is as to the right and power to waive the homestead exemption, as was done in this case. The determination of this question is the more important, because, homestead exemptions being comparatively recent in Louisiana, there has been no adjudication by this court on the subject. In other States it has been often considered, and the adjudications have been by no means uniform, while in most it is regulated by statute. In a majority of the States, however, it is held that such waiver is ineffectual and will not be enforced. See Smyth on Homestead and Exemptions, section 542, citing 15 Cal. 266; 22 N. Y. 249; 9 How. Prac. R. 547; 10 How. Prac. Rep. 282; 9 Am. Law Reg. (La.) 112; 1 Am. Law Reg. (N. S.) 553; 16 Iowa 415; 20 Iowa 376; 16 Iowa 243; 7 Wis. 582; 20 Pick. 90; 2 Cald. (Tenn.) 283. In Pennsylvania, wlicre the right of waiver seems not to have been questioned before, in the case of Forrester vs. Mack, 49 Penn. (13 Wright) 387, decided in 1865, the court says: “If, with the experience and observation we have had, wo wore now to pass upon the question for the first time wo would be very likely to deny the right of waiver altogether, and-srick to the statute as it is written.” In Crawford vs. Lockwood, 9 How. Prac. R. 547, the court refused to enforce a waiver of “ the benefit of all and every exemption of property from sale on execution under the laws of the State.” In Harper vs. Leal, 10 How. Prac. R. 276, the debtor made a promissory note, and for the payment of the same agreed “ to waive all exemption to property,” and the court said: “Not only am I of opinion that the agreement in this note to waive all exemption to property'ereates no estoppel, but I go further, and hold that it must also be regarded in the eye of the law as a hard, oppressive, and unconscionable contract, and that it is totally void, as in contravention of the spirit of our statutes and of public policy.” In Kruette vs. Newcomb, 31 Barb. 169, the same principle was affirmed. The note on which the judgment in that case was’ recovered expiressly waived and relinquished “all right of exemption of any property I may have from execution on this debt.” The judges all concurred that a person contracting a debt can not agree with the creditor that in case of non-payment he shall bo entitled to levy his execution upon property exempt from levy by the general laws of the State. In Curtis vs. O’Brien, 20 Iowa; 376,the same doctrine was maintained, and such an agreement was held contrary to public policy. The same author before referred to, Smyth on Homestead and Exemptions, the latest and fullest work on the subject which we have seen, published in 1875, after a largo experience of exemption laws in most of the States, and upon a review of all the authorities, says with much force (section 545): “The statutes which allow exemption are based upon views of public policy, intended for the preservation of families against the improvidence or misfortune of the head, and the latter cannot, by any executory agreement, waive such exemption; because if effect were given to such waiver a few words contained in any note or obligation would operate to change the laiv between debtor and creditor, and if they were enforcible, such words would generally by inserted in obligations for small demands, and so frustrate the intention of the Legislature.”

That such was the object of the homestead exemption under the laws of Louisiana, and that it was not intended for the benefit M the debtor, but for the protection and benefit of the family, is aj^areut from the provision requiring not only that the property be occupied as a residence and bona fide owned by the debtor, but that ho shall have a family, or mother or father, or person or persons dependent upon him for support. C. P. 645. As has been said before, we have nothing to do with the policy or impolicy of the law. As was said in the Pennsylvania cause, ita lex scripta est, and the judicial department of government is bound by it. To- permit the waiver of the exemption, would be to revise the policy of the law at the option of the debtor, for whose personal benefit it was evidently not designed, and wo are unable to perceive why it should not he considered immoral and against the interests of society to permit one who has given a mortgage to claim the benefit of tho exemption from its operation, and that it should be so considered whore he had simply, in an executory agreement, added the words of waiver. In our opinion one act is as immoral as the other, and neither rests on that ground, but on tho policy of the law-maker. Arguments on that subject apply equally to the operation and effect of usury laws which enable the debtor not only to refuse to pay the excessive interest, but to recover it back within a year, and also to all statutes creating exemptions which violate the doctrine of common pledge equally with that now under cpnsideration. The same may be said of all bankrupt and insolvency laws which provide for the release of the debtor from his obligations without payment in full.

The rich and prosperous condition of Louisiana before the war, when every one was independent, as a rule, and the contrary an exception rendered homestead exemptions unnecessary. No sooner had the war ended, however, than, owing to tho prostrate and impoverished condition of the people, both here and in several of our sister States of the South, the protection of the debtor’s family against absolute beggary through his fault or misfortune began to be guarded against by the passage of homestead exemption laws. Ours was immediately and earnestly pressed to its passage at the extra session of the Legislature in the fall.of 1865, thus, evincing the public policy and demand. The exemption then made has continued through every successive change of legislation and government, and may now be considered with us, as it has long been with other States, and especially with the great and growing West and tho Pacific slope, as part of our settled policy. As to whether this policy be good or bad, wise or unwise, about which there arc and have always been, and always will bo, conflicting opinions, it is not our province to determine. It is enough that wo find it so, and it, therefore, becomes us to deal with it by tho light of tho experience and observation, the wisdom and the jurisprudence of other States where similar laws have boon of longer existence and of more extended operation. In tho new West, as in our sister State of Texas (see-14 Texas Rep. 449), this policy of homestead exemption has been largely influenced by a desire to invite new population of men of families and small moans, to develop their resources and build up the country with the fresh scope given to their industry and enterprise from the assurance that under all circumstances the shelter for their families Was secured to them against disaster or misfortune in business. And where would the same motive find more appropriate place than in Louisiana, where the influx of a new and hardy yeomanry would prove a panacea for all troubles, political and material.

There is another view to take of this question of waiver of homestead exemption. In several of the States, as in Connecticut and Alabama, for instance, the levy on exempt property is considered the same as a lev.y on a third person’s property, and the officer who makes such seizure is liable for a trespass. See Smyth, section 547, citing 16 Conn. 144, and several cases from Alabama and Pennsylvania. In Louisiana a highly penal statute to the same effect was passed in 1874, p. 53, and again in 1876, p. 123, while nowhere is the penalty of nullity more fully denounced against all acts and contracts in contravention of public policy, R. C. C. 1893 and 1895; and by an express provision of our law (C. C., art. 12), whatever is done in violation of a prohibitory law is void, though its nullity be not formally directed.

For the reasons stated, it is therefore ordered, adjudged, and decreed that the judgment of the court below bo avoided and reversed so far as it recognizes and seeks to enforce the waiver of exemption of the homestead of the defendant, which is hereby decreed exempt as such from ■seizure or sale under plaintiffs’ mortgage and judgment, and that in all other respects it be affirmed. It is further ordered that plaintiffs pay the costs of appeal and defendant the costs of the court below.