On Rehearing.
HAWTHORNE, Justice.As stated in our opinion on first hearing, there is involved in this case the right of a conventional mortgagee under an act containing a homestead waiver to assert the homestead claim in his own behalf and be paid from a surplus of the proceeds of the sale of the mortgaged property in preference to prior recorded judicial mortgages out of the amount which would have been reserved as the homestead of the judgment debtor had the debtor appeared and established that the property sold was his homestead.
The facts are set forth fully in our original opinion, and there is no necessity to reiterate them here. This court affirmed the judgment of the Court of Appeal on the ground that there was no proof that the property seized and sold was the bona fide homestead of the debtor at the time of its seizure. In so holding this court pointed out that for a debtor to be entitled to the exemption of his property as a homestead four conditions must exist: (1) The debt- or must be the bona fide owner of the land; (2) he must occupy the premises as a home; *86(3) he must' have a family or person or persons dependent upon him for support, and (4) the property must not exceed $4000.00 in value. The opinion further pointed out that the last requirement is unnecessary for purposes of obtaining $4000.-00 preference to the proceeds when the property seized brings more than $4000.00 at the sale, but that for the homestead to be recognized the first three stated conditions must be proven by the evidence.
Our holding in this case on original hearing made it unnecessary to decide whether the holding of the Court of Appeal in the instant case, to the effect that the benefit of the homestead exemption is personal to the beneficiaries named in Section 1 of Article 11 of the Constitution, was in conflict with the holding of this court in Glenn v. Bresnan, 123 La. 1014, 49 So. 690; see also Abbott v. Heald, 128. La. 718, 55 So. 28.
The relator Collins filed application for rehearing, asking us to remand the cas.e so that he might make proof that the property seized and sold, on which he has a conventional mortgage with homestead waiver, was the bona fide homestead of the judgment debtor Babin. We granted a rehearing so that we might consider this request for remand.
In argument on rehearing in this court the respondent Sharp, the holder of a judicial mortgage, refused to concede that the property seized was the bona fide homestead of the judgment debtor. He contends that a remand would not avail relator anything because the homestead exemption must be claimed before the seizure and sale, and the exemption in this case was not claimed until after the sale. In support of this contention he cites Andrews v. Mc-Creary Lumber Co., 155 La. 730, 99 So. 579, 33 A.L.R. 608, and Acosta v. Whitney Nat. Bank of New Orleans, 214 La. 700, 38 So. 2d 391.
There is language in the cases cited by respondent which would seem to support his contention. For instance, in Acosta v. Whitney National Bank this court said; “Furthermore, it ,is the "settled jurisprudence of this court that the [homestead] exemption is forever lost where the one entitled to claim it fails to do so at the time, the property is seized and sold, and this is-so even so far as the dependent wife and minor children, or other dependent members, of the family, are concerned.” The court in support of this statement cited among-other cases the case of Andrews v. Mc-Creary Lumber Co., supra.
An analysis of these cases, however, will show that they are not in fact authority for respondent’s position in the instant case. In each of these cases plaintiffs instituted a petitory action seeking to recover property, or an interest therein, that had been sold' at judicial sale, on the theory that the property sold constituted a bona fide homestead. In each case the claim to the homestead exemption was not made when the property was seized or before the sale took place.' The important fact in each of these cases is that the homestead exemption was the basis of a claim for title to property which had been sold at judicial sale.
In the instant case title to the property is not involved, nor is it contended that the judicial sale of the property was a nullity. The exemption in this case is being urged as a basis for a claim to the proceeds from the sale still in the hands of the sheriff" or the purchaser, and under these circumstances such exemption was timely urged.
The relator has cited several cases which support his contention that the debtor can claim the homestead as long as the proceeds-of the sale remain in the hands of the sheriff or the purchaser, these cases being: Coleman v. Continental Bank & Trust Co.,. 139 La. 1078, 72 So. 742; Johnson v. Agurs, 116 La. 634, 40 So. 923; Abbott v. Heald, 128 La. 718, 55 So. 28; Cloud v. Cloud (La. App.), 127 So.2d 560. In Coleman v. Continental Bank, the syllabus by the court reads:
“It is not too late for a debtor to claim, the $2,000 reserved as a homestead ex*87emption after the sheriff has made an adjudication of the property subject to the homestead for a bid exceeding $2,000, so long as the proceeds of the sale remain in the hands of the sheriff or of the purchaser at the sheriff’s sale.”
The other cases cited by relator are to the same effect.
In Cloud v. Cloud, supra, the Court of Appeal explained the rationale of the cases ■which hold that where the homestead exemption is urged as a basis of title to property sold, the claim to the exemption comes too late if not urged until after the sale. The court pointed out that the prerequisite of a claim to the homestead exemption prior to the judicial sale is not found in the constitutional provision, but that such prerequisite results from judicial interpretations that if homestead claims to the property are recognized after the sale despite the absence of the claim to the exemption made before the sale, the stability of all land titles emanating from sheriff’s sales is in danger, a result that the authors of the Constitution must not have intended. In other words, in the absence of a waiver of the exemption, if the bona fide homestead is sold under legal process and at such sale does not bring more than $4000.00, then under the provisions of the Constitution the sale is null and void; however, for the debt- or to avail himself of this nullity, he must claim the exemption before the sale and cannot thereafter have the sale set aside and the purchaser divested of title on the sole ground that the property was his bona fide homestead.
Having concluded only that the homestead exemption was timely urged in the instant case, we shall remand the case to the district court so that evidence may be admitted on the question whether the property seized and sold was the bona fide homestead of the judgment debtor. If this fact is not established on the remand, the claim of relator, the holder of a conventional mortgage containing a homestead waiver, to be paid out of the proceeds of the sale in preference to holders of prior judicial mortgages would no. longer be an issue in the case. Moreover, if it is not established that the property seized and sold was the debtor’s bona fide homestead, the question of whether the benefit of the homestead exemption is personal to the beneficiaries named in the Constitution, as held by the Coürt of Appeal, would no longer be in the case. In ordering this case remanded we express no view as to the correctness of the judgment of the trial court or the opinion of the Court of Appeal affirming it.
For the reasons assigned the case is remanded to the district court to be proceeded with according to the views ’ here expressed. Assessment of costs is to await final disposition of the case.