Kay v. Furlow

Decision Date30 October 1933
Docket Number32544
CourtLouisiana Supreme Court
PartiesKAY v. FURLOW. In re FURLOW

Rehearing Denied January 2, 1934

Writs denied, and judgment affirmed.

Charles F. Fletchinger, of New Orleans, for respondent.

Rittenberg & Rittenberg, of New Orleans, for respondent.

OVERTON Justice. O'NIELL, C. J., dissents.

OPINION

OVERTON, Justice.

In 1931, defendant, who is a practicing attorney in New Orleans being in need of money, granted a chattel mortgage on his law library and office furniture, by notarial act, for the sum of $ 550, this sum being represented by five promissory notes, made by him, each for the sum of $ 110, and containing clauses as to 8 per cent. interest and 10 per cent. attorney's fees. One note is made payable each month, and all were made payable to defendant's order, and were by him indorsed in blank.

Defendant defaulted in the payment of the notes, and plaintiff, who is the holder of the notes, caused executory process to issue on the mortgage, under which defendant's law library and office furniture were seized to satisfy the mortgage indebtedness. Defendant applied to the civil district court for the parish of Orleans for a writ of injunction to prevent the sale of the mortgaged property. The basis of the application is that defendant, being a practicing lawyer, his law library and office furniture, which are necessary to enable him, as a lawyer, to earn a living, are exempt from seizure under article 644 of the Code of Practice, even in the foreclosure of a special mortgage, granted on them, the mortgage not containing any express waiver of the exemption. The judge, after hearing the rule nisi, refused the demand for a preliminary injunction. Hence, this application for writs.

Article 644 of the Code of Practice, which governs here, just prior to its amendment and re-enactment by Act No. 183 of 1932, reads, so far as pertinent, as follows, to wit: "The Sheriff or constable cannot seize the linen and clothes belonging to the debtor or his wife, nor his bed, bedding or bedstead, nor those of his family, nor his arms and military accoutrements, nor the tools and instruments and books and sewing machines, necessary for the exercise of his or her calling, trade or profession by which he or she makes a living. * * *"

This article appears in the Code of Practice, in the section thereof, treating of the writ of fieri facias. This writ does not issue in proceedings by executory process, but in the execution of judgments for money, and directs the sheriff to seize sufficient of the property of the debtor, which he may find in the parish, to satisfy the writ. The Code of Practice, in article 643 thereof, directs the sheriff what to do with the writ, ordering him to seize "the property of the debtor which he shall find in his parish, except such things as are mentioned in the following article [meaning art. 644]," and then follows the enumeration of exempt articles, found in article 644, quoted, in part, above.

The fact that the Code specifically directs the sheriff to seize the property of the debtor, lying in the parish, except the property enumerated in article 644, and the fact that the purpose of the writ of fieri facias is to seize the property of the debtor generally in the execution of a moneyed judgment, suggests that the exemption is intended to apply only to ordinary debts and, perhaps, to debts, secured by general liens, imposed by law.

It may be said that no restriction whatever is found in article 644 of the Code of Practice, or elsewhere, on the right of the debtor to waive the exemption. The law has left him free to waive it or not as he sees proper. Corpus Juris, with reference to such exemptions, says: "A debtor may not only sell and convey his exempt property absolutely but in the absence of express restrictions may mortgage or pledge it, and when he does he thereby impliedly waives his right of exemption as to the particular property against the mortgage or pledge." 25 C. J. p. 107, § 185.

Again the same work says: "An express waiver of exemption is not necessary in case of a mortgage or pledge of exempt property. A mortgage or pledge implies a waiver as to the particular property. Even though the statute exempts property from 'forced sale under any process of law' the mortgagor or pledgor of exempt property cannot claim it as exempt as against proceedings to enforce the mortgage or pledge." 25 C. J. p. 114, § 196.

Ruling Case Law tersely states the law, as follows: "In the absence of a prohibitory statute a mortgage or pledge of exempt property is valid and the execution of such an instrument constitutes a waiver of the exemption as to the debt secured." 11 Ruling Case Law, § 61, p. 544.

In Kyle v. Sigur, 121 La. 888, 46 So. 910, a case was presented in which the defendant pledged his law books. When sued on the pledge he raised the issue that the property could not be seized as it was exempt under article 644 of the Code of Practice, under Act No. 17 of 1874, and under Act No 79 of 1876, these acts being merely re-enactments of article 644 of the Code, and under the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT