
    No. 5088.
    N. D. Fuqua v. John Chaffe & Bro.
    Where the answer is that the mortgage was executed upon the land in favor of defendants before the plaintiff had acquired a homestead right upon it — that is, that Fuqua, while a resident of the parish of Terrebonne, and before he went to reside on the Oak Point plantation, in the parish of Madison, mortgaged that plantation to the defendants ;
    Held — That the law which conferred the homestead right existing at the time the mortgage was granted, the defendants accepted the mortgage subject to the contingency that might arise in the future, rendering it necessary for the mortgageor to avail himself of the benefit of the homestead law.
    Appeal from the Thirteenth Judicial District Court, parish of Madison. Hough, J.
    
      F. D. Farrar, for plaintiff and appellee. Wm. B. Spencer, for defendants and appellants.
   Taliaferro, J.

The defendants having a mortgage upon the plantation belonging to the plaintiff, to secure a debt of three thousand dollars, and having a judgment by confession, issued execution and caused the property to be seized and advertised for sale. The plaintiff came in by way of third opposition, and opposed the sale, setting up his right of homestead upon the premises, and prayed that a survey be made for the purpose of laying off the quantity of land embracing the improvements which he is entitled to retain by law.

The answer is that the mortgage was executed upon the land in favor of defendants before the plaintiff had acquired a homestead right upon it; that is, that Euqua while a resident of Terrebonne and before he went to reside on the Oak Point plantation in the parish of Madison, mortgaged that plantation to the defendants. Judgment was rendered in favor of the plaintiff, and the defendants have appealed.

We think the judgment correct. The law confers the right and the law existed at the time the mortgage was granted. The defendants accepted the mortgage, subject to the contingency that might arise in the future, rendering it necessary for the mortgageor to avail himself of the benefit of the homestead law.

The plaintiff has fairly made out his case, entitling Mm to the exemption in his favor.

Judgment affirmed.  