
    (115 So. 655)
    No. 28695.
    DOUCET et al. v. FONTENOT et al. LEJEUNE v. SAME. MENOU v. DOUCET et al.
    Jan. 18, 1928.
    Rehearing Denied Feb. 13, 1928.
    
      (Syllabus by ¿Editorial Staff.)
    
    I. Public lands <&wkey;35(4) — Entryman not perfecting entry before death has no right passing under inheritance laws (43 USCA §§ 164, 171).
    Since, under Rev. U. S. St. §§ 2291, 2292 (43 USCA §§ 164, 171; U. S. Comp. St. §§ 4532, 4543), no rights accrue to entryman who dies before entry of public lands is perfected, entryman not having perfected entry has no right which passes under inheritance law of the state.
    2. Publio lands &wkey;35(5) — Land entered becomes private property of entryman when, final proof is made and final certificate issued (Rev. Civ. Code, art. 2402).
    Land of United States entered under public land laws ceases to be property of the United States, and becomes private property of the entryman when final proof is made and final certificate issued, it being rule under Rev. Civ. Code, art. 2402, that time at which title vests is looked to in determining status of property.
    3. Husband and wife &wkey;>252 — Publio land, title to which passed to husband during marriage, became community property and not husband’s separate property.
    Where title to public land'entered by husband before his marriage passed out of United States and into husband during marriage, land became community property and not husband’s separate property, and after death of husband his widow owned one-half thereof in full ownership.
    4. Homestead <&wkey;144 — Homestead is not continued indefinitely in favor of surviving spouse regardless of changed conditions (Const. 1921, art. II, § I).
    Although the benefit of homestead exemption may be claimed by surviving spouse or children of deceased beneficiary, under Const. 1921, art. 11, § 1, homestead exemption cannot be continued indefinitely in favor of surviving spouse regardless of changed conditions.
    5. Homestead <&wkey;84 — -Property held half in full ownership and half in usufruct is not held in “indivisión,” within rule that homestead cannot be predicated on property held in indivisión.
    Property held by surviving spouse, one half in full ownership and the other half in usufruct, is not held in indivisión, within meaning of jurisprudence declaring that homestead rights cannot be predicated on property held in “indivisión.”
    6. Constitutional law <&wkey;l3 — Constitution should be liberally construed if necessary to accomplish its object.
    Since a Constitution is generally written in broad terms, language thereof should be liberally construed if necessary to accomplish its ■object.
    7.Homestead <&wkey;23 — -Surviving spouse owning half of property in full ownership and other half in usufruct was entitled to homestead in own right (Const. 1921, art. II, § I).
    Where public lands entered by husband before marriage became community property when final proof was made and final certificate issued before husband’s death, wife became owner of community estate therein, and as widow owned other half in usufruct, and under Const. 1921, art. 11, § 1, was entitled to homestead in her own right.
    Overton and Land, JJ., dissenting.
    Appeal from Fifteenth Judicial District Court, Parish of Acadia; W. W. Bailey, Judge.
    Separate actions by Mrs. Marie Doucet and others and by Mrs. Anna Lejeune and others against Louis Fontenot and others, and action by Jules Menou against Remy L. Doucet and others. From the judgments rendered, separate appeals were taken.
    Judgment in the first action reversed, with instructions, and judgments in the other actions affirmed.
    Medlenka, Bruner & Chambers, of Crowley, for appellant Menou.
    W. J. Carmouche, of Crowley, for appellees Mrs. Marie Doucet and others.
   ST. PAUL, J.

These are three separate appeals, taken in three separate cases, entitled and numbered (in the court below) as above. They present two distinct issues, to be set forth hereafter. The appeal in the case first named brings up one of said issues; the appeal in the case next named brings up the other issue, entirely distinct from but somewhat dependent on the issue presented in the first named; the appeal in the last-named case simply brings up the last issue in another form, and is therefore wholly dependent on the result in the first two cases. All the facts are undisputed and are as follows:

I.

On May 26, 1884, Clemile Doucet, then unmarried, entered 160 acres of public land, situated in this state, under the public land laws of the United States. On. May 4, 1886, he married Anna Lejeune under the régime of the community of acquéts and gains existing in this state, and lived with her on said lands up to the time of his death (2S years afterwards). On September 18,1889, he made final proof as to said lands and obtained his final certificate therefor on February 20, 1890, entitling him to a patent, which he received some months later.

On December 16, 1914, said Olemile Doueet died, intestate and fully solvent; and leaving the aforesaid 160 acres of land, on which he had resided with his wife and family until his death, apparently unincumbered and free of all debts.

At the time of his death he left, as his survivors, his widow in community, the aforesaid Mrs. Anna Lejeune, and nine children born of said marriage, some of them still minors at the time, since three of them were still minors at the time this litigation began (August 4, 1926), to wit:- (1) Remy L. Doueet; (2) Alphonse N. Doueet; (3) Olemile Christy Doueet; (4) Marie Doueet; (5) Lydia Doueet; (6) Adam O. Doueet; (7) Walter W. Doueet; (8) Lillian Doueet; and (9) Ethel Doueet.

II.

About six years after the death of Olemile Doueet, the husband and father, to wit, on August 14, 1920, the three children first named, to wit, Remy L. Doueet, Alphonse N. Doueet, and Olemile Christy Doueet, all then of age, and Mrs. Anna Lejeune, widow, as aforesaid, borrowed $10,000 from ' Jules Menou, plaintiff in the suit last named in the caption, entitled Jules Menou v. Remy L. Doueet et al., No. 6782 of the docket of the lower court, for the reimbursement whereof the four of them gave him their joint and several (solidary) two promissory notes, each for the sum of $5,000,' arid payable, respectively, December 1, 1921, and December 1, 1922, with interest at 8 per cent, from date and 10 per cent, attorney’s fees in case of suit.

On October 24th, the makers of said notes had paid nothing on account thereof, or of the interest thereon, except $200 paid on July 17, 1923; and on November 13, 1924, said Jules Menou obtained judgment against them in solido for the full amount of said two .notes ($10,000), with interest and attorney’s fees, subject to a credit of $200 as aforesaid, to wit against Remy L. Doueet, Alphonse N. Doueet, and Olemile Christy Doueet, and against Mrs. Anna Lejeune, widow as aforesaid.

III.

Reverting now to the facts stated in paragraph I, supra, it will be observed that if the tract of land therein mentioned is to be considered as community property, i. e., as having formed part of the community between Olemile Doueet and his wife, Anna Lejeune, the latter then owns one half thereof in full ownership, the other half thereof belonging to the nine children, subject, however, to the usufruct of their mother. And in that case it will be seen at a glance that Mrs. Anna Lejeune, Remy L. Doueet, Alphonse N. Doueet, and Olemile Christy Doueet own between them a full two-thirds interest in the land, whilst the other six children own between them only the other third interest therein, subject to the usufruct of their mother.

On the other hand, if said tract ‘ of land forms no part of the community, but was the separate property of the husband, Olemile Doueet, then his widow, Anna Lejeune, has no interest therein whatsoever, and Remy L., Alphonse N., and Olemile Christy Doueet own between them only a one-third interest in said land, the other two-thirds interest therein belonging entirely to the other six children.

IV.

When Jules Menou sought to execute the judgment which he had obtained, as aforesaid, he attempted to seize a two-thirds interest in said land, claiming that said land was community property. He was promptly met by an injunction taken out by the other six children, who were not his judgment debtors, restraining him from seizing more than a one'-third interest in said land; they claiming that the land was the separate property of their father. Those injunction proceedings are entitled Mrs Marie Doucet et al. v. Louis Fontenot et al., No. 7442 of the docket of the lower court (Louis Eontenot being the sheriff in charge of the execution). The trial judge held with the plaintiffs in injunction, and Jules Menou appeals. The issue brought up by that appeal is therefore whether, under the facts stated, the 160 acres of land formed part of the community between Olemlle Doucet and Anna Lejeune, his wife, or were the separate property of said Clemile Doucet.

V.

In Ford v. Edenborn, 142 La. 927, 77 So. 851, this court held that:

“Under sections 2291, 2292, Rev. St. U. S. [43 USCA §§ 164, 171; U. S. Comp. St. §§ 4532, 4543], no rights accrue to the entryman who dies before the entry is perfected, and nothing passes under the inheritance law of the state.”

That “no rights accrue to the entryman who dies before the entry is perfected,” and that, therefore, there is nothing to pass under the inheritance law of the state, is the only and inevitable conclusion to be drawn from the citations relied upon, to wit, McCune v. Essig, 199 U. S. 382, 26 S. Ct. 78, 50 L. Ed. 237, holding (syllabus) that, “under sections 2291 and 2292, Rev. Stat., the widow of the entryman is first entitled to complete the entry and obtain a patent, and a state law is not competent to change this provision and give the children of the' entryman an interest paramount to that of the widow”; and Shiver v. United States, 159 U. S. 491, 16 S. Ct. 54, 40 L. Ed. 231, holding that “the land entered continues to be the property of the United States for five years following the entry, and until,” etc.

And the time when the land entered ceases to be the property of the United States and becomes the private property of the individual is when the final proof is made and the final certificate issued. See the authorities cited in Trumbull v. Sample, 158 La. 629 (par. V), 104 So. 479.

Hence it has been held that where the land was entered during the marriage, but the final proof was made by the wife after the death of the husband, the land became the separate property of the wife and did not fall into the community. Richard v. Moore, 110 La. 435, 34 So. 593; Ford v. Edenborn, 142 La. 927, 77 So. 851. And again, that where the husband entered the land during the marriage but the final proof was made and the ’ certificate issued to him after the death of the wife, the land became the separate property of the husband and did not fall into the community. Industrial Lumber Co. v. Farque, 162 La. 793, 111 So. 166. In Smith v. Anacoco Lumber Co., 157 La. 466, 102 So. 574, the court approved the doctrine that the title vested at the time the final proofs were made, not at the time the land was entered; for the statement of the case ¡ -owed that the husband had entered the land during the marriage, and if that had sufficed to make the land community property this court would not have wasted its time over the other inquiry involved. The only case holding that the time of entei-ing the land fixes its status as community or separate property is Crochet v. McCamant, 116 La. 1, 40 So. 474, 114 Am. St. Rep. 538. That case has been twice criticized. Ford v. Edenborn, 142 La. 927, 77 So. 851; Smith v. Ana-coco Lumber Co., 157 La. 466, 102 So. 574. It is now formally overruled.

To follow the doctrine of that ease would lead to this consequence, that if at the time Clemile Doucet entered the land he had been married to a first wife who had died or divorced him shortly afterwards and before he' married Anna Lejeune, then the land would now belong one-half to that other woman, or to her children by him or by another, and one-half to the children of Clemile Doucet himself, to the entire exclusion of Anna Lejeune, who never could have acquired an interest in said land unless her husband died without completing the entry. And thus this remarkable state of affairs would have prevailed, that the first community would not have been destroyed by the dissolution of the first marriage, but only by the dissolution of the second marriage.

In Succession of Fay, 161 La. 1022, 109 So. 824, this court was asked to involve itself in a proposition tending that way, but declined to do so. And properly so; for if those who own and purchase lands in this state cannot rely on the public records as they appear to read, and on the plain provisions of the law (R. C. C. art. 2402) that it is -the time at which the title vests which must be looked to in determining the status of property, then land titles in this state are mere loose leaves to be scattered by any passing wind. But it is not so. Cf. Succession of Goll, 156 La. 910, 101 So. 263, and authorities there cited; Trichel v. Home Ins. Co., 155 La. 459, 99 So. 403, and authorities.

In this case the entry was made before the marriage, but the final proof was made and final certificate issued during the marriage, and hence the title to the land passed out of the United States and into the husband during the marriage. We therefore hold that the land was community property and not the separate property of the husband, and the judgment below, which holds the contrary, will be reversed.

This means, of course, that Menou had a right to seize a twothirds interest in the land, instead of only a one-third interest as he was allowed to do.

VI.

The case secondly named in the caption, to wit, Mrs. Anna Lejeune v. Louis Fontenot et al., No. 7443 of the docket of the lower court, is in form a separate suit, but in substance a mere intervention in the suit first named (No. 7442). Mrs. Anna Lejeune,. widow of Clemile Doucet, joins the plaintiffs in the first-named suit, urging that the land is the separate property of her husband and not community property, claiming, however, in any event a homestead exemption of $2,000 whether said land be the one or the other.

Her claim, if said land be found to be separate property, is based on that clause of the constitutional provision relative to homestead exemptions, reading as follows:

“The benefit of this exemption may be claimed by the surviving spouse, or- minor child or children, of a deceased beneficiary. Const. 1921, art. 11, § 1, in fine; Const. 1898, art. 244; Const. 1879, art. 219.”

This provision first appeared in the Constitution of 1879, and was evidently intended to meet the conditions prevailing and the ruling of this court in Briant v. Lyons, 29 La. Ann. 64, decided in 1877, by which, if the husband died pending his claim for the $2,-000, under Act 52 of 1865, Ex. Sess. (R. S. § 1691), the widow and minor children were shut out and relegated to their claim, for half that sum ($1,000) under the provisions of R. C. C. art. 3252.

With that in mind the constitutional provision interprets itself. Cf. Smith v. Jenkins, 147 La. 437, 85 So. 68. It was certainly never intended to continue the homestead indefinitely in favor of a surviving spouse, regardless of changed conditions. Baker v. Davis, 143 La. 215, 78 So. 473.

“On the other hand, there is nothing in the Constitution to deprive the widow of the benefit ’of the exemption in her own right, being now the head of a family and having other persons dependent upon her for support.” Smith v. Jenkins, supra; Tinney v. Vittur, 134 La. 551, 64 So. 407, and authorities; Milliken & Farwell v. Roger, 138 La. 826, 70 So. 848; Adams v. McCoy, 140 La. 30. 72 So. 797.

In all the cases cited the property had been community property, and the surviving spouse owned one half in full ownership and held the other half in usufruct, as in this case. Property so held is not held in mdmision within the meaning of the jurisprudence declaring that homestead rights cannot be predicated on property held in indivisión. The chief reason of that rule (see Henderson v. Hoy, 26 La. Ann. 156), to wit, that the sale of property held in indivisión can always be forced, 'has no application to property held as above said. Succession of Glancey, 112 La. 430, 36 So. 483; Smith v. Nelson, 121 La. 170, 46 So. 200; Succession of Bolán, 158 La. 911, 105 So. 10. A tenure of that kind has certainly all the elements of oionership sufficient to insure the accomplishment of the purpose intended, to wit, to secure for the head of a family “a ‘home’ beyond the reach of financial misfortune, around which gather the affections of the family; the greatest incentive to virtue, honor and industry.” Hebert v. Mayer, 48 La. Ann. 938, 20 So. 170. And since a Constitution is generally written in broad terms, the language thereof ought always to be liberally construed if necessary to accomplish its object. “Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” M’Culloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579.

It is not necessary in this case to go as far as in Harrelson v. Webb, 124 La. 1007, 50 So. 833, 134 Am. St. Rep. 529, where the court held that the homestead might be claimed even after the right of usufruct had been lost by the remarriage of the surviving spouse, for in this case the surviving spouse has not remarried.

Suffice it to say that we are of opinion that in this case the surviving widow is entitled to a homestead in her own right.

We are therefore of opinion that the judgment in the case secondly named in the caption, which allows Anna Lejeune $2,000 out of the proceeds of sale, should be affirmed.

It is true that, owing to the peculiar slant which this case has taken, the $2,000 allowed her appears to come mostly out of the share of her three major children, codebtors with herself; for the one-third interest which was sold by the sheriff and the proceeds of which are still in his hands, was sold as their property. But since her codebtors are without interest in the matter, and since she cannot get the amount twice, but only once, it is immaterial whether she get her $2,000 now and out of the one-third which has already been sold, or whether she shall wait until the other one-third be sold and take her $2,000 out of the whole proceeds. We will therefore make no change in the judgment since the result would be exactly the same in either case.

VII.

In the case last named in the caption, Jules Menou v. Remy L. Doucet et al., No. 6782 of the docket of the lower court, the plaintiff took a rule on the sheriff and Mrs. Anna Lejeune to show cause why the $2,000, claimed by Mrs. Lejeune and held by the sheriff, should not be piaid over to him. From what we have said, it follows that the trial judge properly dismissed said rule.

Decree.

The judgment appealed from in the case entitled Mrs. Marie Doucet et al. v. Louis Fontenot et al., No. 7442 in the court below, is therefore reversed, and it is now ordered that the demands of the plaintiff therein be rejected at their cost in the court below.

The judgments appealed from in the cases entitled Mrs. Anna Lejeune v. Louis Fontenot et al. and Jules Menou v. Remy L. Doucet et al. (Nos. 7443 and 6782 in the court below) are affirmed, the costs of the court below in both cases to be paid by said Jules Menou.

. And it is further ordered that the costs of this appeal be paid one half by said Jules Menou and the other half by the plaintiffs in the case of Marie Doucet et al. v. Louis Fontenot et al.

OVERTON and LAND, JJ., dissent.

O’NIELL, C. J.

I agree that the 160 acres of land acquired by Olemile Doucet under the homestead laws belonged not to him separately, by virtue of the homestead entry and settlement which began before he was married, but to the marital community existing between him and Anna Lejeune Doucet when the patent for the land was issued. It is well settled that land titles acquired by homestead entries are controlled by the laws of the United States until the title in the entryman is complete. It is only when the title has passed from the United States to the individual that “the land like all other property in the state is subject to state legislation.” Buchser v. Buchser, 231 U. S. 157, 34 S. Ct. 46, 58 L. Ed. 166. For that reason, I see no doubt about the proposition that article 2402 of the Civil Code, which declares that property acquired by purchase by a married person is community property, does not apply to a land title acquired by homestead entry until the United States government has parted with its title. My opinion, however, is that the date of the patent, rather than the date of the final certificate, should be deemed the date of the purchase of such land because it is by the issuing of the patent that the United States government parts with its title. McCune v. Essig, 199 U. S. 382, 26 S. Ct. 78, 50 L. Ed. 237. The final certificate, in such case, is issued by the register of the local land office in whose jurisdiction the entry is made, and a duplicate copy of the certificate is forwarded by the register to the General Land Office; and then, and not until then, is the patent issued. It is a,matter of no importance in this case whether we consider the date of the final certificate or the date of the patent to be the date on which the United 'States government parted with its title and placed .the title beyond the control of the federal laws and subjected it to state legislation. The register’s final certificate' and the patent both were issued during the marriage of the entryman.

I concur also in the ruling that, even though the widow of Clemile Doucet is not the sole owner of the homestead, but owns only an undivided half interest in it, she is entitled to the homestead exemption allowed by section 1 of article 11 of the Constitution of 1921, to “every head of a family, or person having a * * * person or persons dependent on him or her for support.” The reason why the children’s joint ownership of a half of the property does not stand in the way of the widow’s homestead exemption is that she has the usufruct of the children's share of ’the property, and her right of occupancy cannot be disturbed by a suit for partition. Inasmuch as the value of the widow’s interest in the property exceeds $2,000, it is not exempt from seizure and sale to satisfy her debt, but, in lieu of such exemption, she is entitled to $2,000 out of the proceeds of a sale of her half interest in the property, in preference to the claim of the mortgage creditor. She is not entitled to any part' of the proceeds of a sale of the sixth interest — in the homestead — which belongs to her three sons who are liable jointly and in solido with her for the mortgage debt.

I concur, therefore, in the decree rendered in this ease.  