HOMESTEAD-OCCUPANCY-LEASED LAND.

1. Occupancy as a residence is one of the conditions essential to sustain a right of homestead.

2. If a person cuts off part of his lot from the premises on which he has his dwelling house, and leases it, he loses his right of homestead to that portion leased.

3. Plaintiff owned three houses. He resided in one, and he leased the others. He retained the homestead to that part of the land only on which the house in which he resides is situated.

4. He cannot successfully claim the leased property as part of the homestead, as it is not the occupancy intended by the following language of the Constitution: The homestead "owned by the debtor and occupied by him." (Syllabus by the Court.)

Appeal from Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.

Action by John P. Clausen against John B. Sanders, sheriff, and others. Judgment for plaintiff, and defendants appeal. Tersed.

Re

seized-one for $12 a month, and the other for $4 a month.

The plaintiff bought the whole lot some time ago. His contention is, that he leased part of the whole occupied by him is not an abandonment of his homestead.

The record discloses that he bought the lot, and afterward built two small, cheap houses, as before mentioned; that he lets the two small houses, and the other he occupies. There is a fence separating his own house from those he lets, but they are all on the same lot originally bought by plaintiff, as before mentioned.

Appellee moved to dismiss the appeal for want of jurisdiction. The case falls within the terms of article 85 of the Constitution of 1898, which provides that the Supreme Court shall have appellate jurisdiction in all suits on the merits, including homestead exemptions. There is no merit in appellee's motion to dismiss the appeal. It is overruled.

On the Merits.

It is made an imperative condition, in order that the owner may secure his homestead, that it is actually owned and occupied by him as a residence.

Defendants admit all that plaintiff in in

BREAUX, J. Plaintiff claims a homestead on real estate in the town of Franklin, St. Mary. The property which he claims as his homestead was seized by defendant for a debt due by plaintiff to defendant firm. Plaintiff procured an injunction preventing the sale of the property seized. In his petition he averred that the lot has a front of 75 feet on Wilson street, by a depth of 150 feet, bounded east by Third street, south by lot of Tessero, and west by lot of William Murphy, with improvements thereon.

He averred further that he bought the property for $550, and that after his purchase he erected small buildings thereon, which cost him about $800, and that the property is not worth over the amount of these two sums, viz., $1,350.

Plaintiff is a workingman of very limited means, and is the head of a family dependent upon him. The issue is whether he has abandoned his homestead on that portion which defendant caused to be seized.

Defendants and appellants urge that plaintiff had divided his lot, and ceased to occupy that portion which appellant the judgment creditor had seized; that he had built a house on the portion not seized, in which he resided, and that a fence separated the property that was seized from that which had not been seized; that the plaintiff rented out the seized portion to his tenants.

The record shows that plaintiff lets out two small houses on his lot, adjacent to that

2. See Homestead, vol. 25, Cent. Dig. §§ 45, 46, 133, 334.

exemption, and aver that plaintiff would be entitled to the exemption claimed, were it not that he has separated a part of his land from that he now occupies, by a fence, and that he leases this adjoining portion thus separated to two tenants. There is no question raised in regard to his right to a homestead on the property actually occupied by him.

The contentions on the part of defendants and appellants are that he (the debtor, Clausen) has ceased to occupy the leased land as a homestead, and that in consequence the right of homestead to the leased portion ceased, and it became subject to seizure.

The appellee, claiming the homestead on his leased land, urges that, although he had leased part of the land, he yet remained in possession.

There are no decisions upon the subject pronounced by the courts of this state. There are decisions in jurisdictions in other states holding that, if premises are occupied by the owner as a residence for himself and family, the right of homestead remains, although the property is used for other purposes. Thus it has been decided that, notwithstanding a building is used partly for other purposes, it may yet be a homestead, if occupied as before mentioned. American & English Ency. of Law, vol. 15 (2d Ed.) p. 582.

"But in some states, though not in all, where there are two or more houses on lands owned by a debtor, and he resides in one and leases the others, he can acquire the homestead in that part of the land only on which the house in which he resides is situated." Id. p. 582.

"The sheriff's return on the citation in the case of Stewart Bros. & Co. v. A. J. Baham reads: "Received in office April 8, 1893, this citation, together with certified copy of same and certified copy of plaintiffs' petition, and on the 8th day of said month and year served said copy of this citation and certified copy of plaintiffs' petition on defendant, A. J. Baham, by delivering same to his wife, Mrs. A. J. Baham, at his residence, A. J. Baham being absent at the time, which fact I learned by interrogating the said Mrs. A. J. Baham, residing six miles from the courthouse. I now make this my return on the 12th day of same month and year. This my report. [Signed] E. B. Dees, Deputy Sheriff."

""The return of the sheriff does not show a sufficient service under article 189 of the Code of Practice. It should have stated, "made at the usual place of domicile or residence by delivering them to a person apparently above the age of fourteen, living in the house."

An examination of the record shows that Andrew J. Baham obtained from the district court for the parish of Tangipahoa an injunction against the sale of certain property of his which was seized by Stewart Bros. & Co. in execution of a judgment which they had obtained against him on the 29th of April, 1893. In addition to his prayer for relief against the sale of his property, he prayed that the judgment be decreed null and void. In his petition he averred that the citation which issued in that case did not mention defendant's name; that there was no service of citation made on petitioner; that the service of citation relied upon was a domiciliary one, and in his return the deputy sheriff stated that service was made by delivery on petitioner's wife, "Mrs. A. J. Baham"; that his wife's name was Lucinda C. Baham, and she did not inform the deputy that her husband was "Mr. A. J. Baham"; that the return did not show that the service was made "at the usual place of domicile or residence of petitioner," nor that the same was served by delivery "upon a person above the age of fourteen years living in the same house." Under reservation of these particular objections, he contingently urged that the judgment which was rendered was obtained by default, and failed to show that defendant had been regularly cited, and that more than ten days had elapsed, and that, defendant failing to appear, a judgment of default was rendered against defendant in favor of the plaintiffs.

That said judgment was not rendered by the judge in open court.

Under® reservation of these objections, he

null, that the execution and seizure were illegal, as no notice of judgment had been given him. Stewart Bros. & Co. excepted that the judgment sought to be annulled had acquired the force of res judicata; that plaintiff's petition disclosed no ground for injunction, his remedy, if any he had, being by appeal.

Under reservation, he answered, pleading first the general issue. He averred that the judgment attacked was legally rendered; that it was a final judgment, valid in law; that defendant in the suit was legally cited therein; that the deputy sheriff was well acquainted with the wife of the defendant; that the said wife was at the time of service more than 14 years of age, and was living at the time in the same house with her husband at his residence in the parish of Tangipahoa; that her legal home was that of her husband; that the judgment was rendered by default, but the same was regular in form; that a note of testimony was taken, and the same was regularly tried in open court; that the judgment is in the form adopted and used in all the courts of the district, comprising the parishes of St. Tammany, Washington, Tangipahoa, St. Helena, and Livingston, for more than 30 years past; that the judgment was read aloud and in audible voice in open court by the minute clerk of said court on the day of April, 1893, and the same was read and signed by the presiding judge, Robert R. Reid, in open court, sitting upon the bench, on the day of its date, in presence of the officers of the court and members of the bar, while the court was in session; that the judgment was duly recorded on May 2, 1893, and said recording operated as a legal notice of judgment to the defendant; that the writ of fi. fa. which had issued was legally issued, and defendant had notice of said judgment before same was issued, but, if he had not, then the right to notice was barred by the prescription of five years; that if it should be held that defendant had not been given notice of judgment prior to the issuing of the writ, and his right to require notice had not been prescribed, then defendant had been given notice of the judgment on December 21, 1900, 29 days before the filing of the answer of the defendant in injunction, and the plea of want of notice could no longer avail him; that plaintiff had repeatedly acknowledged the debt to Stewart Bros, & Co. since the judgment had been rendered, and promised to pay the same; that plaintiff in injunction had by lapse of time waived all informalities, if any there were; that he lulled defendant in injunction into security, and was abusing his benevolence by issuing an injunction against a debt which he had repeatedly acknowledged; that he was entitled to damages which he claimed for a wrongful injunction. The district court rejected the demand for the nullity of the judgment, but sustained the injunction against the sale of the prop

erty on the ground that the writ of fi. fa. had issued prematurely. It set aside the writ and the seizure made under it. Baham appealed to the Court of Appeal. Defendants answered the appeal, praying that the judgment, in so far as it had decreed the writ of fi. fa. which had issued to have been premature, and had set aside the same and the seizure under it, be annulled and reversed. The Court of Appeal amended the judgment of the district court by annulling the judgment against A. J. Baham. It otherwise affirmed it. The Court of Appeal in rendering judgment declared it was unnecessary to pass upon any issue raised, other than that of want of citation, and did not do so further than to reject certain parol evidence which the district court had permitted to be introduced in support of the citation which had been made in the case.

Opinion.

The particular remedy through which the plaintiff seeks relief in the present case is an injunction coupled with an "action of nullity of judgment." He does not appeal from the judgment. To warrant the rendering of a judgment in favor of a plaintiff by a district court, it is necessary that there shall be proper and sufficient evidence before it in his favor upon the merits of the cause, and also proper and sufficient evidence before it that the proceedings have been such as to justify it in taking action. If, notwithstanding there be not such evidence before it, the court renders judgment, the party cast in the action and aggrieved by the judgment is entitled either to appeal from the judgment, or to have it annulled through an action of nullity; the particular remedy to which he should have recourse being determined by the special circumstances of the case. The remedies are controlled by different rules, and the rights of the litigants are to a very considerable extent affected by the shape in which they are presented. Bird v. Cain, 6 La. Ann. 251.

Plaintiff in injunction, Andrew J. Baham, charges that the judgment rendered against him in favor of Stewart Bros. & Co. is a nullity for the reason that he was not legally cited. That cause is expressly assigned in article 606 of the Code of Practice as a ground for an action of nullity, citation being (Code Prac. art. 206) the essential ground of all civil actions.

Citation is accomplished in two ways: First. In person when the citation and petition are delivered to the defendant. Code Prac. art. 188. Second. At the domicile when copies of the citation and petition are left at the usual place of domicile or residence of the defendant, if he be absent, by delivering them to a free person, apparently above the age of 14 years, living in the house. Code Prac. art. 189.

If the copies of petition and citation were, as a matter of fact, "left at the usual domicile or residence of the defendant, he being ab

sent therefrom at the time, by delivering them to a free person, apparently above the age of fourteen years, living in the house," the defendant, Baham, was in reality legally cited, and the subsequent proceedings could not and should not be annulled for want of citation.

In his petition for annulment, Baham does not allege as a fact that he had, or ever had had, more than one domicile or residence; still less, that copies were not left at his usual residence. He does not allege that he was not absent from his residence at that time, nor that the person to whom the copies were delivered was not his wife, nor that she was not a person over 14 years of age, nor that she was not "apparently so"; nor does he pretend that his wife was not living in the house with him.

Instead of denying the existence of the facts in the case giving rise to a legal citation, and authorizing primarily a judgment of default, and a subsequent confirmation of the same, he limits and confines his attacks to the return which the sheriff made in respect to the citation, and seeks to utilize the slips which he avers the sheriff made therein. The citation is a matter separate and distinct from the sheriff's return. A citation may be thoroughly legal, while the return may fail in making the recitals the sheriff ought to make; and, on the other hand, the return may be beyond criticism, and yet the fact be that no legal citation has been made. Adams v. Basile, 35 La. Ann. 104; O'Hara v. Independence Co., 42 La. Ann. 227, 7 South. 533; Civ. Code, art. 1762; State v. Beeder, 44 La. Ann. 1010, 11 South. 816.

The citation itself is the important legal fact upon which the validity of the judgment rests, while the return is simply “evidence" in respect to that fact.

If the sheriff, through inadvertence, negligence, or ignorance, fails to make the recitals which properly should have been made, but, none the less, plaintiff's counsel and the court act upon it, and judgment is rendered upon it, the defendant on appeal is authorized to take advantage of the mere absence of these recitals, and have the judgment set aside as having been rendered upon insufficient evidence as to the fact of citation; the whole subject-matter of citation in that case being apparent upon the return. But where the defendant, instead of appealing, has recourse to an action of nullity, he must leave the mere recitals of the return which the court below dealt with merely as an evidence of the facts connected with the citation. He must go back of the return of the sheriff, and attack and tender an issue as to the existence of the facts which the law made necessary to constitute a citation. He may still use the sheriff's return and its recitals as evidence in aid of his claim that no citation had been made, but that return, with its recitals, no longer has the force and

effect which it would have had, had the objection been raised on appeal. The plaintiff may be in a position, when the attack is made upon the citation itself, to meet the attack, rebut it, and sustain the citation. Whether he will be able to do this will depend upon the facts of each special case. Let us come to the case before us. It appears from the sheriff's return that he had the necessary copies in his hands; that he went with them to defendant's actual residence; that he found he was absent from his residence at that time; that he thereupon delivered the copies there to his wife, Mrs. A. J. Baham, living in the house with him, the house being six miles from the courthouse.

Plaintiff in injunction does not controvert the truth of these recitals, but insists that the citation itself was not good, because the sheriff fails to state in his return that the service was made at the usual place of domicile of Baham, and to say that the person upon whom the service was made was upon a person above the age of 14 years.

The only objection which he makes by way of affirmative allegation is that his wife was named Lucinda C. Baham, and she did not tell the sheriff (a fact which he did not assert) that her name was Mrs. A. J. Baham.

In Collins v. Walling, 6 La. Ann. 703, this court said: "It is proper that sheriffs should on all occasions follow the words of the Code of Practice, but, whenever the returns made comply substantially with the law, the refusal to give them effect on purely technical grounds would amount to a denial of justice." We do not think that a party should be permitted, by failing to appear and make defense when called into court through a citation to which no real objections could be made, to bide his time to take advantage of mere nonrecitals in a sheriff's return of facts which actually existed, and which he could, and perhaps should, have inserted therein. It would be an easy and convenient method to avoid the payment of just debts.

On the trial of this case in the district court the defendants in injunction placed the deputy sheriff who made the return upon the stand as a witness, and, over objection of plaintiff in injunction, he was permitted to testify to the fact that he knew Baham and his wife; that she was at the time of the service over 14 years; that the residence of the parties was about six miles from the courthouse; that the parties had been living there for 9 or 10 years. The objections made were that the sheriff's return could not be altered, varied, or contradicted or eked out by parol.

We do not think the testimony offered and received did alter, vary, or contradict the return. It simply supplied affirmative proof of the existence of certain collateral facts independent of the return, and as to which it was silent.

It is perfectly true that the sheriff must himself furnish proof, through his official return, of what his own acts have been in execution of a citation placed in his hands. For instance, the testimony of a third person who may have accompanied the sheriff while serving the citation, and knew precisely what had taken place, would not be permitted to be substituted for the sheriff's return. The sheriff must officially return his own actions. But what was done here was not to prove by parol evidence and by a third person any act of the sheriff, but certain facts which existed as facts independently and separately from anything he had done. The sheriff returned that he had served the papers upon the wife of Mr. Baham. That fact had, of course, to be established by the sheriff himself. But the age of Mrs. Baham at that time was a fixed fact, totally independent of any act done by the sheriff in making the service, and provable by anybody who knew her age. State v. Baum, 51 La. Ann. 1120, 26 South. 67.

If her age had been averred by plaintiff to be under 14 years (which, as a fact, it was not) that was a matter which could be shown dehors the return by any legal proof. The same thing could be said as to proof of the party to whom the copies were delivered as being the wife of Baham. Had that fact been denied, it could be shown to have been true. So, also, the fact itself that Baham had actually lived in the house at which the service was made for nine or ten years could be shown, certainly in the absence of any allegation that he had had another residence.

The witness who was called to give this testimony was the deputy sheriff himself who had made the service. He was not called on to contradict or break down his return, but, on the contrary, to sustain it by way of rebuttal to an attack made upon it in an action of nullity. State v. Favre, 51 La. Ann. 441, 25 South. 93; State v. Baum, 51 La. Ann. 1120, 26 South. 67.

He testified to no new act in the matter of the service, nor did he alter by his testimony any act which the return covered. We think the testimony was properly received. See Woodlief v. Logan, 50 La. Ann. 440, 23 South. 716; State v. Baum, 51 La. Ann. 1120, 26 South. 67. Independently of this testimony, we are of the opinion that, the relief sought being through an action of nullity, we could and should fairly presume that the residence referred to in the return Iwas the actual and only residence of the defendant, and that his wife was over 14 years of age, in the absence of any allegations negativing these facts. Whiting v. Hagerty, 5 La. Ann. 686-687; Collins v. Walling, 6 La. Ann. 703. We may observe in reference to a sheriff's return that the only requirements expressly pointed out by the Code of Practice are those specified in articles 201