Carroll v. Magee

Citations

• 120 La. 626
• 45 So. 528
• 1908 La. LEXIS 549

Syllabus

<p>1. Homestead — 'Transfer or Incumbrance— Mortgage.</p> <p>Where there is a sale and resale, between-, the husband and his creditor, of the homestead, the wife, who was not a party thereto, is not estopped to assert her right to the homestead' against the holder of the note given by the husband as for the purchase price of the property nor does it make any difference that such nóte was acquired before maturity and in good faith.</p> <p>2. Same.</p> <p>Where one seeks to sell, by judicial process, and in foreclosure of a mortgage, the homestead of another, it does not meet the requirements of his case for him to show that the exceptional conditions necessary to the validity of his mortgage appear to exist. He must show that they do exist; otherwise, the public policy of the state upon the subject of homesteads may be set at naught by the substitution of pretended sales and resales, in the place of simple mortgages, for the security of claims for which the courts have no authority to order the sale of homesteads. A note secured by mortgage may be negotiable: but the mortgage is not, and, for-the purposes of the homestead exemption, there -can be no estoppel which can prevent the courts from ascertaining whether the debt which; it purports to secure is oue for which the homestead may be sold. Individuals cannot be permitted, by their conventions, to derogate from the force of constitutional ordinances enacted as rules of public order.</p> <p>(Syllabus by the Court.)</p>