
    (77 South. 127)
    No. 21046.
    GREEN v. TRAYLOR.
    (Nov. 26, 1917.)
    
      (Syllabus T>y the Court.)
    
    On the Question of Jurisdiction.
    1. Courts <@=3224(9) — Jurisdictions—Louisiana Supreme Court.
    The Supreme Court alone has appellate jurisdiction of a claim for exemption of property from seizure for debt under article 244 of the Constitution. The court is not deprived of its jurisdiction in such case by the fact that there are other issues to be decided, as to which the value or amount in contest does not exceed $2,000, and of which the Court of Appeal alone has appellate jurisdiction.
    On the Merits.
    2. Exemptions <@^94 — Deed of Trust — Forfeiture.
    A so-called deed of trust of personal property that is exempt from seizure for debt by article 244 of the Constitution does not have the effect of a renunciation or forfeiture of the exemption, if the instrument does not purport to convey an indefeasible title and the debtor retains possession of the property.
    3. Exemptions <@=>33 — Harness — Constitutional Provisions.
    Harness is not declared exempt from seizure for debt by article 244 of the Constitution, unless it be in the category of farming implements on a homestead.
    Appeal from Third Judicial District Court, Parish of Bienville; W. C. Barnette, Judge.
    Suit by John H. Green, trustee, against R. 0. Traylor, with sequestration of personal property pendente lite. Judgment for plaintiff, and defendant appeals.
    Judgment reversed in part, with directions, and ordered that case be transferred to Court of Appeal, Second District, for decision of certain questions.
    R. L. Williams, of Arcadia, for appellant. Goff & Barnette, of Arcadia, for appellee.
   O’NIELL, J.

This suit is founded upon a deed of trust, made by the defendant in Arkansas, purporting to transfer to the plaintiff, as trustee for a firm styled H. M. & D. J. Kinard, four mules and two wagons and harness, to secure the payment of a debt due by the defendant to H. M. & D. J. Kinard.

Alleging that he was the legal owner and entitled to possession of the mules and wagons and harness, and that he feared the defendant would take or send the property out of the jurisdiction of the court during the pendency of the suit, the plaintiff had the property sequestered pendente lite. The prayer of his petition was that the property be delivered to him, to be disposed of by him as trustee, for the purpose of paying the debt due by the defendant to H. M. & D. J. Kinard, according to the terms of the deed of trust. He prayed also for a judgment for $100 damages for the alleged illegal detention of the property by the defendant. And in the alternative he prayed that, if any of the property could not be found, he should have judgment for its value.

The defendant, in answer to the suit, admitted that he had signed the so-called deed of trust, hut alleged that it was illegal, null, and void, and that it was made in violation of article 244 of the Constitution of Louisiana, declaring two mules and one wagon exempt from seizure. He prayed that the plaintiff’s demands be rejected, and, in any event, that two of the mules and one wagon and a' set of harness be declared exempt from seizure and be released to him.

Judgment was rendered against the defendant, decreeing the plaintiff to be the owner of the mules, wagons, and harness, and ordering them delivered to him, as trustee, for the use and benefit of H. M. & D. J. Kinard, to be disposed of according to the terms of the deed of trust. The defendant prosecutes this appeal.

The learned counsel for the appellee, without formally moving to dismiss the appeal, directs our attention to the fact that the value of the property sequestered, as well as the amount of the debt for which the so-called deed of trust was given, is less than $2,000. He suggests that we should, of our own motion, dismiss the appeal, for want of jurisdiction.

Opinion — On the Question of Jurisdiction.

According to article 85 of the Constitution, this court alone has appellate jurisdiction of suits involving homestead exemptions; and that has been construed to mean suits involving the question of exemption, under article 244 of the Constitution, not only of the homestead, properly so-called, but also of personal property of the character mentioned in that article of the Constitution.

On the question of appellate jurisdiction, this case is, in every respect, like that of Green, Trustee, v. Kettler, No. 21663, 78 South. —, 143 La. —, where it was held that this court alone had jurisdiction to decide whether two of the mules sequestered were exempt from seizure under article 244 of the Constitution, and that the court was not deprived of jurisdiction of that question by the fact that there were other issues to be decided as to which the value or amount in contest did not exceed $2,000. Without deciding then whether the case might eventually have to be transferred to the Court of Appeal for a decision of the questions that did not affect the property claimed to be exempt from seizure, we declined to transfer the case without having decided the question of exemption.

Adhering to the ruling made in the case of Green, Trustees, v. Kettler, we must consider and decide all and only the questions that must be passed upon in determining whether two of the mules and one wagon and harness sequestered in this case are exempt from seizure.

On the Merits.

The defendant is the head of a family —a widower with nine children depending upon him for support. He owns no other property than the mules, wagons, and harness described in the deed of trust. It is-therefore conceded that two of the mules and one wagon are exempt from seizure or liability for the debt due to H. M. & D. J. Kinard, under article 244 of the Constitution, unless the deed of trust operated as a waiver or renunciation of the exemption.

The district judge held that the deed of trust operated as a forfeiture or renunciation of the exemption, on the theory, as we understand, that it divested the defendant of his ownership of the property. We do not concur in that opinion. The defendant retained possession of the property described in the instrument, and it did not purport to divest him of his title. The purpose or consideration expressed in the deed was to secure the payment of a debt due by the defendant to H. M. & D. J. Kinard; and the condition stated was that, if Traylor should pay the debt when due, the deed should be void, but if the debt should not be paid at maturity, then the trustee, Greep, might take the property into his custody, and, on giving 10 days’ notice by publication on the courthouse in Union county, Ark., might and should sell the property for cash, and with the proceeds pay the debt due by Traylor to I-I. M. & D. J. Kinard, and, after deducting 5 per cent, commission for making the sale I and all other costs of the sale, turn over the residue to Traylor if there should be a residue. One of the Kinards, as a witness in the case, admitted in his testimony that the transaction was not intended as a sale, but was only a hypothecation of the property to secure the payment of the debt. It was not a pledge or pawn, because there was no delivery or transfer of possession. It was not made in conformity with the statute prescribing the form for a chattel mortgage in Louisiana, because it was signed by only one of the parties. See section 1 of Act No. "65 of 1,912, p. 76. Our conclusion, therefore, is that two mules and one wagon are exempt from liability for the debt that forms the basis of this suit.

Harness is not mentioned in article 244 of the Constitution, unless it be in the category of farming implements on a homestead; and that is not the situation with regard to the harness sequestered in this case. It seems strange that the plaintiff should be allowed to strip the exempted mules of the harness with which they are to haul the exempted wagon. But, though that is perhaps the result of an oversight on the part of the framers of the Constitution, we are unable to correct it.

As the jurisdiction of this court extends only to the question of exemption in this suit, and, as that applies only to two mules and one wagon, the case must be transferred to the Court of Appeal for a decision of the issues affecting the other property sequestered.

The judgment appealed from is annulled and reversed in so far as it denied the exemption from seizure of two of the defendant’s mules and one wagon. It is therefore ordered, adjudged, and decreed that the sheriff release from seizure and deliver to the defendant two mules and one wagon, to be selected by him from the property sequestered in this suit. It is further ordered that this case be transferred to the Court of Appeal, Second Circuit, for a decision of all questions affecting the property sequestered and not now declared exempt from seizure. The plaintiff is to pay all costs incurred by the sequestration of the property declared exempt from seizure, and all costs of the appeal to this court. All other costs of court are to depend upon the judgment of the Court of Appeal.  