Page images
PDF
EPUB

the debt which the mortgage was given to secure would be extended as long as the mortgagor desired, upon the payment by him of the interest on the debt annually. It cannot be doubted that under this undisputed evidence in the case, without regard to what might be the intention of the parties to the mortgage, the law rendered the same fraudulent and void as to creditors, existing and subsequent. Dry Goods Co. v. Roden, 110 Ala. 511, 18 South. 135; O'Neil v. Brewing Co., 101 Ala. 383, 13 South. 576; Benedict v. Renfro, 75 Ala. 126, 51 Am. Rep. 429; Roden v. Norton (Ala.) 29 South. 637.

There is nothing in the contention of appellants that the mortgagor had the right to convey and mortgage the property in question as exempt property without com. mitting any fraud against his creditors. The evidence of the appellant Cross, the mortgagor, as well as other testimony in the case, shows that the value of the property mortgaged exceeded $1,000, which was in excess of what the law exempted to him. The authorities cited by appellant upon this question are applicable only in case where the property conveyed constitutes all that is owned and possessed by the grantor, and does not exceed in value his exemption under the law.

We have no doubt of the correctness of the chancellor's finding upon the evidence, and his decree will therefore be affirmed.

CAPITAL CITY INS. CO. v. COFIELD. (Supreme Court of Alabama. Dec. 17, 1901.) APPEAL BILL OF EXCEPTIONS-MOTION ΤΟ STRIKE-SIGNING AFTER APPEAL PRACTICE -ISSUE OF FACT-JOINDER OF ISSUE-FINDING JUDGMENT.

1. The time for signing bills of exceptions, and the extension of such time, as fixed by statutes and rules applicable thereto, cannot be limited by reason of an appeal, and the failure of the presiding judge to sign a bill of exceptions until after an appeal had been taken is not sufficient ground for striking such bill from the record.

2. Where an issue of fact was joined upon a defendant's rejoinder, setting up a written agreement with plaintiff, and upon the trial of the issue so made the written agreement was introduced in evidence without objection, and without any evidence in disproof of its execution, defendant was entitled to have the issue found in its favor, and a judgment rendered according to such finding, regardless of any other issue in the case, and regardless of whether the rejoinder had merit.

Appeal from Cleburne county court; T. J. Burton, Judge.

Action by W. J. Cofield against the Capital City Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Thos. G. & Chas. P. Jones, E. F. Jones, and Alex. C. Birch, for appellant. Merrill & Bridges, for appellee.

SHARPE, J. In this cause a motion is made to strike the bill of exceptions from

the record on the ground that the same "was not signed by the presiding judge until after the appeal to this court was taken." The statutes and rules fixing the time for signing bills of exceptions, and authorizing the extension of such time, by their terms apply generally. To hold that the time fixed by or in accordance with those statutes and rules will be limited by reason of an appeal would be to deny to them, without any valid reason, the operation which their provisions expressly import. The motion must be overruled.

The eighth plea sets up as a bar to this action a failure on the plaintiff's part to comply with a condition of the policy which required him to make proof of his loss resulting from the fire. To this plea a single replication, numbered 6, was interposed, averring acts and conduct of defendant's agents Porter and Dean, respectively, as constituting a waiver of the condition referred to. With reference to Dean this replication avers, substantially, that shortly after the fire he, being duly authorized thereto as defendant's agent, visited the scene of the fire, examined the books and accounts kept by plaintiff, and made no objection to payment of the loss, or of a failure to make proof thereof. After a demurrer to this replication was overruled, defendant rejoined thereto, in substance, and without more, that before Dean had any dealing with plaintiff in regard to the policy a writing was executed whereby it was set forth and agreed between the plaintiff, as of the first part, and defendant, as of the second part, as follows: "That any action taken by the party of the second part in investigating the cause of fire, or investigating the amount of loss and damage to the property of the party of the first part caused by fire alleged to have occurred on Nov. 10th, '98, shall not waive or invalidate any of the conditions of the policy of the party of the second part held by the party of the first part, and shall not waive or invalidate any right whatever of either of the parties to this agreement. The intent of this agreement is to preserve the rights of all the parties hereto, and provide for an investigation of the fire, and the determination of the amount of the loss or damage, without regard to the liability of the party of the second part. Signed in duplicate this 5th day of Dec., 1898,"-and that by reason of said contract no act or omission of said Dean had the effect to waive any right of defendant to insist on the matters of defense set up in the eighth plea of defendant. Issue of fact was joined on this rejoinder, and the written agreement mentioned was, without objection, and without any evidence in disproof of its execution, introduced and received in evidence, and the rejoinder was thus completely proved. Thus it appears that defendant was entitled to have the issue so made and tried found for it, and that judgment should have been rendered in its

favor accordingly, regardless of the other issues, and regardless of whether the rejoinder had merit. Assurance Co. v. Hall, 120 Ala. 547, 24 South. 936, 74 Am. St. Rep. 48; Brown v. Bamberger, 110 Ala. 342, 20 South. 114. Upon this consideration, if for no other reason, the judgment appealed from must be reversed; and the case having been tried without a jury, this court will render the judgment which the trial court should have rendered, viz., that the defendant go hence without day, and recover of the plaintiff its costs in the trial court.

Reversed and rendered.

(106 La.)

LYONS v. ANDRY. (No. 13,711.)1 (Supreme Court of Louisiana. Nov. 18, 1901.) OF

HOMESTEAD-ABANDONMENT-DEATH
SPOUSE-DEPENDENT CHILD.

1. A right of homestead once existing is not conditioned upon continued and continuous residence upon the homestead property. Though nonresidence does not carry with it per se a forfeiture of the right, that fact may be "evidence" of an intention to abandon, which, when coupled with others, may establish it. Each case on this subject must be determined by its own special facts and circumstances.

2. A daughter, 18 years old, who is living with her father, giving to him her services, is, in legal contemplation, a person dependent upon the father for support, though she may be physically able to earn her own living. The right to the father to claim the services of the minor and the right of the daughter to support are reciprocal rights and obligations.

3. Decision in Maxwell v. Roach, 30 South. 251, 106 La. 123, to the effect that a homestead right is not necessarily terminated by the dissolution of the community by the death of one of the spouses, is aflirmed.

Blanchard, J., dissenting. (Syllabus by the Court.)

Appeal from judicial district court, parish of Plaquemines; Robert Hingle, Judge.

Action by P. Lyons against Eugene Andry, Sr. Judgment for plaintiff, and defendant appeals. Reversed.

A. E. & O. S. Livaudais, for appellant. James Wilkinson, for appellee.

Statement of the Case.

NICHOLLS, C. J. Eugene Andry, the defendant in the above suit, prayed for and obtained a preliminary injunction in the district court, upon allegations: That he owned certain real estate in the parish of Plaquemines, which he described, and which he alleged did not exceed in value the sum of $1,000. That he was a head of a family, having persons dependent upon him for support; had since the 24th day of November, 1880, resided upon the said property, which he on said day declared his homestead, and caused the evidence of said declaration to be registered, in accordance with articles 219, 220, of the constitution of 1879, and Act No. 114 of 1880, in the records of this parish,

1 Rehearing denied December 16, 1901.

as appeared by reference to the said declaration and the certificate of recording of the same, which were annexed to and made a part of his petition. That, furthermore, petitioner was entitled to claim said property as a homestead under article 244 of the constitution of 1898. That, acting under and by virtue of a writ of fieri facias issued in the suit of Mrs. P. Lyons against Eugene Andry et al., No. 439 of the docket of this court, Mrs. Patrick Lyons, plaintiff in said suit, and the sheriff of this parish, had seized, taken in their possession, and threatened to sell the above-described property, to pay and satisfy the amount of the judgment rendered against petitioner. That, unless prevented by due process of law, petitioner feared, and verily believed and apprehended, that they would thus dispose of his property, all to his irreparable loss, damage, and injury, and notwithstanding all protestations and remonstrances; and that a writ of injunction was the only equitable remedy in the premises. The plaintiff, Mrs. Lyons, answered, praying that the injunction be dissolved, with damages against the plaintiff and the sureties on the injunction bond. She averred that the plaintiff in injunction was not entitled to any homestead on the property seized, because he did not reside thereon, had no person or persons legally dependent upon him, and that the same was not set apart and registered as required by law. The district court dissolved the injunction, with 20 per cent. damages against plaintiff in injunction and the sureties on his bond, and Andry appealed.

Opinion.

We do not understand appellee to contest the fact that the property was originally legally claimed and held as a homestead. The question is therefore whether, holding the property as a homestead at one time, it has ceased to be such-First, by reason of the death of the wife, carrying with it as a result the dissolution of the community between herself and Andry, vesting title to an undivided half thereof in the wife's heirs, subject to a right of usufruct by the husband upon that half during his natural life, unless he should remarry; second, because the homestead right has been lost by nonresidence upon the property; third, because Andry has no longer any one dependent upon him for support. The first ground for nonexemption claimed by the appellee is answered adversely to it by the very terms of article 219 of the constitution of 1879, and article 244 of 1898. This court had occasion to so declare recently in the case of Maxwell v. Roach, reported in 106 La. 123, 30 South. 251. The evidence taken on the trial of the case was to the effect that Andry's wife died in 1900; that there were ten children born of their marriage, five sons and five daughters; that one of the daughters died; that all of the sons are of age, and all but one married; that the daughters are all of age, and married, but one, a girl of 18 years of age. Andry testi

fied that he left his place in 1893 because the storm of that year blew his home down; that he was at the time of the trial staying about three-quarters of an acre from his place; that there was no dividing fence or ditch between his place and that on which he was stopping; that his son Felix was leasing the place at which he was stopping, which belonged to Mr. Ballays; that he was on his place every day; he was cultivating truck on it; that that was his way of earning a living; that there was a little shanty on the property seized,-a small shanty, with one room,-in which his son Seraphin sleeps; the room is 10 by 12 feet, with flooring, and is covered with shingles; that he (witness) never left the place, and was on it and worked on it every day that it was needed; he had his corn and his potatoes there at the time of testifying; he had only one place to sleep, which was at his son Felix's; he had only one room (or, rather, one bed) there; he ate very seldom with his son; the 18 year old daughter cooked, washed, and sewed for him; did not cook for his son. Felix Andry testified that the room which his father occupied at Mr. Ballays' was a small one. He and his sister alone occupied it. It was a medium or small room. Very little furniture in It. There is a bed in it. Very little partition is between the wall and the bed. His brother (Seraphin) made rice on his father's place that year, he alone; but Mr. Ballays made him the advances to make the crop. He also made a crop on part of Mr. Ballays' place. The two places on which he made the crop made but one rice field combined. On the examination of the father as a witness he was asked "how it was that he had not rebuilt his house on that place; also what the room in the shanty in which his son slept was used for before the storm; also how old he was. These questions were objected to by the seizing creditor's counsel, and the objections sustained. The objection to the first question was that plaintiff in injunction had alleged that he was residing on his homestead on the seized property, and that he could not contradict the allegations of his own petition by attempting to show the reasons why he was not residing thereon in a habitation; the objection to the second question was that it was irrelevant, and not responsive to the issues tendered in the plead ings; and the objection to the third question was that there was no issue as to age. Counsel of appellant states that the object of the first question was to show that he was too poor to rebuild his house.

The property exempt from execution as a homestead in this state by the constitutions of 1879 and 1898 is declared to be property "bona fide owned" by the debtor and "occupied" by him. The word "occupy" is defined by the Century Dictionary as "to take possession of; seize; take up; employ; to take possession of and retain or keep; enter upon the possession and use of; hold and use, especially to

take possession of (a place, as a place of residence, or, in warfare, a town or country), and become established in it." Intrans. I. "To be in possession or occupation; hold possession; be an occupant; have possession and use." We are to determine whether the seized debtor owned and occupied and still "owns and occupies" the property which he claims as his homestead. As he actually resided upon the property at one time, and was entitled to a homestead, the question before us is whether he has lost his homestead rights by abandonment. If those rights are dependent upon an actual, continued, and continuous personal "residence" upon the property of himself and the person or persons dependent upon him for support, his rights have ceased to exist, for it is not claimed that such conditions have existed since 1893. At that date all parties ceased to have an actual "residence" upon the property. It is very generally recognized that, after a party claiming the homestead has actually "resided" upon the property with his family, the fact of a change of the residence to some other place does not of itself-per se-cause a forfeiture of the homestead right, though that fact may be "evidence" of an intention to abandon, which, when coupled with others, may establish it. In this case the change of residence in 1893 was not a voluntary change, but the result of a calamity. At that time a violent storm destroyed the residences of a large number of persons in the parish of Plaquemines, and among others that of the plaintiff in injunction. Possession of the property itself was not, however, lost, under the evidence that it has been always retained by Andry. It was not leased to others, but was used continuously for "truck" cultivation by the owner, though a part of it was, by his permission, utilized by one of the sons of the family (who slept in the single room of a small building which had not been destroyed by the storm) in making a crop of rice. Andry, at the time of the trial, had his corn and potatoes on the property, and went upon it almost daily for the purposes of cultivation. The residence was shifted to the adjoining place at a point about three-quarters of an acre away from the boundary line between two properties between which there was neither fence nor ditch. Residence at the new place was precarious, inasmuch as it was with another son, whose own tenure was that of mere lessee, which might terminate at any time. What Andry and his daughter would do under that contingency we do not know. There can be no doubt that Andry has visibly and continuously "occupied" the land, in the meaning of that word as applied to possession, from and after the year 1893. Rev. Civ. Code, arts. 3426-3433, 3442, et seq. The "occupancy" of the same by the son Seraphin Andry was the "possession" and "occupancy" of his father, and the latter's own daily cultivation of the land gave outward signs of his nonabandonment. The

right of homestead exemption is in this state a constitutional right, and the terms by which it is granted should not be narrowed by either the legislature or the courts. While we think the object of the granting of the right was the keeping of families together in a "home," we should not give undue prominence to the mere place where the family should be together, and lose sight of the object equally had in view, of furnishing the head of the family with the means and instrumentalities by which he could support it. Forfeitures are not favored by the law. The homestead right should be upheld unless clearly shown to have been abandoned. Each case must stand on its own peculiar circumstances. Appellee invokes the length of time during which Andry did not return to actually live on the place, but there was no particular reason for his doing so, as he was in as good a position for deriving the full benefit from the property as he would have been directly upon it. Thompson, in his work on Homestead and Exemptions (section 272) recognizes that the length of time during which a removing owner may have absented himself is a circumstance by which his intent to abandon may be infer red, but he says: "Though the number of months or years to which the absence of the party may be prolonged without working a forfeiture of his rights has frequently been considered in connection with other facts, time alone would be one of the most uncertain and untrustworthy indicia by which the question of the permanency or temporary character of the abandonment could be determined. To hold the homestead right dependent upon continued personal occupation of the premises claimed would be to declare the prime condition of the exemption to be occupation of the premises as a sort of prison, rather than a house; to secure to the family certain pecuniary rights in consideration of their surrender of personal liberty. To restrict privileges of the owner of homestead property to a specific number of months or years during which he might absent himself from home, without losing the benefit of the homestead law, would be merely to extend the limits of the prison without changing its character as a place of confinement." Says Dillon, J., in a case elsewhere cited: "How long an absence will forfeit the right depends upon circumstances. If a man, for example, should lock up his homestead, or even rent it, and go to Europe on a tour of pleasure, or for any other temporary absence, clearly intending to return, and resume possession of the homestead, it seems clear that even five years' absence would not-certainly as respects general creditors-work a forfeiture of the homestead right." And in another part of the same opinion the learned judge says that "prolonged absence would ordinarily justify the conclusion of abandonment, but this may be rebutted and explained where third persons have not been actually mis

led." In Cabeen v. Mulligan, 37 Ill. 230, 87 Am. Dec. 247, the court said: "It would be manifestly unjust to hold, where the absence was prolonged indefinitely by sickness or other misfortune, that the length of time of the enforced absence should seriously affect the question of abandonment." We may say here, in the case before us, that the district judge should have permitted the plaintiff in injunction to show why the house upon the property which had been destroyed had not been replaced. As the seizing creditor

was basing her right upon a forfeiture of the homestead right, plaintiff was entitled to show any fact which would go to negative the theory of abandonment. The question of "residence," under the circumstances of this case, was a mere "evidential fact."

The only remaining question is as to whether the seized debtor has any one dependent upon him for support. The daughter shown to be living with him is shown to be 18 years of age, strong, and able to work, actually doing the washing for her father. There is no doubt as to her ability to leave her father and support herself by hiring herself out, but her father has the legal right to command her services. Nor is there any legal right to force her to hire out her services before reaching majority The father is legally charged with the duty of supporting her until she should become of age. There is no direct testimony to the fact that he actually supports her, but, as he is shown to earn his own living, and she lives with him, we must presume that he has continued to perform the duty which the law imposes upon him. We think the daughter is legally dependent upon him for support.

For the reasons assigned it is ordered, adjudged, and decreed that the judgment of the district court appealed from be, and the same is hereby, annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that the seizure herein made by the defendant in injunction be set aside, without prejudice to any rights which she may have at some future time to seize said property on execution of her judgment. Costs of the district court and of this court to be borne by the defendant in injunction, appellee herein.

BLANCHARD, J., dissents, holding that defendant had lost the homestead right by long-continued nonusage of the property as a place of residence.

(106 La.)

MOFFET v. KOCH. (No. 13,682.) (Supreme Court of Louisiana. Dec. 3, 1900.) APPEAL SURETIES-MASTER AND SERVANTASSUMPTION OF RISK-SEPARATE APPEAL. On Motion to Dismiss Appeal. Act No. 41 of 1894, authorizing certain corporations to become sureties on bonds, is an amendment of the Code of Practice by im

plication, so far as it declares and defines the qualification of personal sureties.

On the Merits.

1. In determining whether the relations between parties are those of contractee and contractor or employer and employé, "the simple test is: Who has the general control over the work? Who has the right to direct what shall be done, and how to do it? And, if the person employed reserves this power to himself, his relation to his employer is independent, and he is a contractor; but, if it is reserved to the employer, or his agents, the relation is that of master and servant."

2. Where an employé is not placed by the employer in a position of undisclosed danger, but is a mature man, doing the ordinary work which he was engaged to do, and whose risks are obvious to any one, he assumes the risks of the employment, and no negligence can be imputed to the employer for an accident to him therefrom.

On Rehearing,

A separate appeal, taken by the plaintiff, after a final judgment on the merits in his favor, from an interlocutory ruling dismissing a supplemental petition which had been filed by him during the proceedings in the district court, injects into the case brought up by the appeal previously taken on behalf of defendant from such final judgment no issues other than those presented in the transcript filed by the defendant. If the appeal so taken on behalf of the plaintiff is entitled to any consideration, it must be as a separate matter, and should have been so docketed.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; John St. Paul, Judge.

Action by William S. Moffet against Julius Koch. Judgment for plaintiff. Defendant appeals. Reversed.

Denegre, Blair & Denegre, for appellant. Benjamin Rice Forman and William J. Hennessey, for appellee.

On Motion to Dismiss Appeal. WATKINS. J. Plaintiff and appellee brings to the attention of the court the facts, that he filed in the district court a motion to dismiss the defendant's appeal on the ground that the surety on the appeal bond "was not a legal surety, because it did not possess property situated within the state," and that said motion was, on trial, dismissed, and that upon a supplemental transcript, which contains the evidence, he now renews his motion to dismiss. The argument on the part of the defendant's counsel presents the question at issue very succinctly, and we have made the following extract therefrom, viz.: "This rule was tried on admissions, the plaintiff in rule admitting that the surety company which signed the bond had fully complied with Act No. 41 of 1894, and the defendant in rule admitting that the surety company had no property within the jurisdiction of the court. The act of 1894 does not require surety companies to have property within the jurisdiction of the court in which the bond is furnished, nor, for that matter, within the state. The first section of the act defines the kind of corporations which may become surety, states the capital

and assets which it must have, and provides that 'such execution, by such company, of such bond, undertaking or obligation, shall in all respects be a full and complete compliance with all the requirements of such laws, ordinances, or regulations that such bond, undertaking or obligation shall be exercised by one or more sureties, or that such sureties shall be residents, or freeholders, or either or both, or possess any other qualification'; contains other language showing that the act does not require that the corporation shall have property within the jurisdiction of the court, or within the state, and provides that certain duties shall be performed by the secretary of state in order to insure the solvency of the companies acting as sureties. The act of 1894 has been in force for six years, and appears to have been accepted and approved of by the profession, since it has been attacked in but two cases, both of which have been decided in our favor, namely, Oil Co. v. Matheson, 48 La. Ann. 1321, 20 South. 713, and Holmes v. Railroad Co., 49 La. Ann. 1466, 22 South. 403." In the Matheson Case the court used the language quoted in the appellee's brief, but nevertheless maintained the validity of the surety, notwithstanding the fact that the objection that surety companies were not required to have property within the state was pressed home; for on page 1324, 48 La. Ann., and page 714, 20 South., it appears that counsel in that case argued, "Nor can private citizens be admitted to suretyship on legal bonds, unless they have property within the state." The motion to dismiss in Holmes v. Railroad Co., 49 La. Ann. 1466, 22 South. 403, seems to have been suggested by the language quoted from the Matheson Case, for the point Iwas made in this case "that the surety is not a resident of the parish of Orleans, where it has no property"; but, nevertheless, the motion to dismiss was denied. It seems to us that, boiled down, the point made by the appellee is that the act of 1894 is in conflict with an article of the Code of Practice which requires that the surety shall reside within the jurisdiction of the court, and an article of the Civil Code which provides that the surety shall have property liable to seizure within the state. If there be a conflict, the act of 1894 governs, being the later act, and repealing pro tanto the articles of the Code and the Code of Practice, as decided in the Matheson Case, 48 La. Ann. 1323, 20 South. 713. We know of no provision in the constitution which prevents the legislature from making any regulations it sees fit with reference to sureties, or which requires the legislature to exact any surety at all in the case of an appeal; and, as a matter of fact, article 3042 of the Civil Code, until amended by Act No. 76 of 1876, did not require that the surety should have property within the state. The statute of 1894 was enacted for the special purpose of authorizing certain corporations to become sureties

« PreviousContinue »