
    (56 South. 364.)
    No. 18,474.
    UNDERWOOD et ux. v. FLOSHEIM BROS. DRY GOODS CO., Limited.
    June 15, 1911.
    On Application for Rehearing, Oct. 30, 1911.)
    
      (Syllabus by the Court.)
    
    Homestead (§ 117*) — Mortgage—Failtjee of Wife to Join — Validity.
    The husband cannot waive the homestead without the written consent of his wife in the manner and form provided in article 246 of the Constitution' of 1898. It follows that the wife is not bound by recitals in deeds of sale and resale between her husband and a creditor, for the purpose of securing an ordinary debt not enforceable against the premises. In such a case the holder of a note given by the husband as for the purchase price stands in no better position than the creditor, whether the note be acquired before or after its maturity. Carroll v. Magee, 120 La. 626, 45 South. 528, reaffirmed.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 191-202; Dec. Dig. § 117.*]
    Appeal from Eleventh. Judicial District Court, Parish of Red River; S. J. Henry, Judge.
    Action by Thomas J. Underwood and wife against the Flosheim Bros. Dry Goods Company, Limited. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    W. A. Wilkinson, for appellants. John F. Stephens and E. H. Carter, for appellee.
   LAND, J.

On January 3, 1905, T. J. Underwood sold to the Elliott Company, composed of W. H. Elliott, J. M. Elliott, P. C. Elliott, and F. J. -Pierson, by authentic act, a certain tract of land containing 160 acres, more or less, with all the improvements thereon, for the price of $300, purported to have been paid in cash. In April, 1905, Pier-son conveyed to the Elliotts all his interest in said tract of land and all other property of the partnership. On January 31, 1906, the Elliott Company, then composed of the three Elliotts, sold by authentic act the same tract of land to T. J. Underwood for the price of $300, represented by his note to the order of his vendors, due November 1, 1906, with 8 per cent, interest after maturity, and secured by mortgage with the usual stipulation. On September 4, 1909, T. J. Underwood, by authentic act, conveyed the same property to his wife, Joanah, for the purported consideration of $400 cash.

In November, 1909, the Elosheim Bros. Dry Goods Company, Limited, sued out ex-ecutory process on the note for $300, representing the price of the sale from the Elliott Company to T. J. Underwood as above stated.

In December, 1909, T. J. Underwood and his wife instituted the present suit to enjoin the sale of said tract of land on the ground of its exemption as their homestead.

In their petition the plaintiffs attack the acts of sale between Underwood and the Elliott Company as null and void, because procured by imposition and fraud; and, in the alternative, they allege that, if the said instruments have any validity, the transaction was a mere mortgage, subject to their homestead rights. Plaintiffs further alleged that the defendant secured possession of said note long after its maturity, and held the same subject to all the defenses and equities existing between them and the Elliott Company.

Defendant answered that the averments of the petition were untrue and insufficient in law, and that the injunction had damaged the respondent in the sum of $125 in costs and attorney’s fees.

There was judgment in favor of the plaintiffs, and the defendant has appealed.

There is no sufficient proof of fraud and’ imposition in the confection of the acts, but the evidence is clear that the deed from Underwood to the Elliott Company was to secure advances to be made on the crop of 1905, and that the price in the deed from-the Elliott Company to Underwood represented the balance due on the open account for the previous year. Underwood continued in possession of the premises, and paid the-taxes on the property. The whole transaction was an attempt to obtain security on the homestead for an ordinary debt through the subterfuge of a sale and resale. However binding the recitals of the deeds may be on Underwood individually, he could not directly or indirectly waive the homestead’ without the written consent of his wife. Const. 1898, art. 246. The wife was no-party to the deeds, and therefore is not es-topped by their recitals.' The defendant is not a purchaser in good faith, as it acquired-the mortgage note long after its maturity-Courts are forbidden to enforce any judgment, execution, or decree against the property exempted as a homestead, except for such debts as are specifically mentioned in article 245 of the Constitution. This prohibition cannot be evaded by the husband’s conveying the property to secure or pay ordinary debts. In Carroll v. Magee, 120 La. 626, 45 South. 528, this court held that, 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 es-topped 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 note was acquired before maturity and in good faith.

We pass certain exceptions as to the sufficiency of the allegations of the petition with-the observation that, even if they were sustained, the result would be the remanding of the case, with the imposition of additional costs on the defendant.

Judgment affirmed.

On Application for Rehearing.

PER CURIAM.

The right of exemption of the homestead from seizure is given only to the head of a family, or to a person having a mother or father, or other person or persons dependent upon him or her for support. It is for the joint benefit of a person and his family, and it protects him or her in the ownership and possession of the homestead occupied by them. And the courts, and other ministerial officers of the state, are forbidden to enforce any judgment, execution, or decree against the property exempted as a' homestead, except for certain debts mentioned in article 245 of the Constitution of the state.

A debtor may not mortgage his homestead, without the written consent of his wife. Article 246. The law does not protect the homestead of a man who is alone, but that of the man or woman with a family or other dependents. And this resultant or expectant right of the family may be protected during the lifetime of the head of the family. He, the head, may do so for the joint benefit of himself and his family. No one else may be authorized to act for the family during the lifetime of the head thereof. The widow and children may claim the exemption of the homestead from seizure only of a deceased beneficiary, or head of a family. The head of the family then has the constitutional right to show, as against the other party to the contract attacked, that it, the contract, is not what it purports to be on its face, and that the pretended act of sale of his homestead is, in reality, a mortgage upon his homestead. And, when such a contract of mortgage is shown by- parol or documentary evidence, it will be set aside as being in violation of the provision of the Constitution which forbids such contracts without the consent of the wife. The existing rules of evidence must bend to the force of the Constitution, which not only forbids the making of such contracts, but also prohibits the courts from executing them. The public policy of the government must be sustained, and not hindered, by technical rulings on the admission of evidence. The laws relative to homesteads are liberally construed. They look towards the protection of the family, and they are therefore in the interest of the whole state.

The defendant here came into possession of the note sought to be executed after maturity. All the equities theretofore existing between the parties -to said note may be shown on the trial. T. J. Underwood is here, seeking the exemption of his homestead from-seizure. He is acting, not for himself individually, but as the head of a family, and for the benefit of the several members of his: family, who have an interest in that homestead; for their rights may not be exercised by them until after his, the beneficiary’s, decease.

The rehearing applied for is refused.

PROVOSTY, J.,

does not agree with the proposition that a debtor cannot mortgage his homestead without the consent of his wife, holding that the wife’s consent is required only for a waiver of the homestead right, but agrees that a rehearing should be refused.  