On Application por Behearing.
Blanch-\rd, J.In a very earnest application for rehearing counsel for plaintiff presents anew the cause he represents.
*128For the second time the case has had our most careful consideration, and we rise from its study with our convictions unshaken as to the correctness of the judgment of the court.
I. The contract of March 27, 1894, did not evidence a sale between the parties. It was, at most, a pignorative contract by which a debt was acknowledged and an attempt made to grant therefor security rights on land.
The apparent vendors remained in possession, not only during the period allowed for the redemption, but long afterwards, and this suit was not brought until more than three years after the redemptory right had expired. See Marbury vs. Colbert, 105 La. 467.
II. Under both Constitutions — that of 1879 and that of 1898 — the benefit of the homestead exemption is extended to the surviving spouse.
The fact that the surviving spouse, as widow in community, is owner of one-half of the property constituting the homestead, does not déstroy the homestead right. Ordinarily parties owning land in indivisión, or rather a party owning an undivided interest in land, cannot claim the homestead exemption on the land thus held in common with others. But, by special direction of the Constitution, this does not apply to the surviving spouse.
Under the Constitution of 1879 the homestead exemption was required to be registered. In this instance the surviving spouse, shortly after the adoption of that Constitution, registered her homestead right. She was then “the head of a family” within the meaning of the Constitution; she was the same when in 1894 the contract under which plaintiff claims was executed; and she was still “the head of a family” at the time this suit was instituted and decided in the court below.
She not only, as surviving spouse in community, owned the undivided half of the tract of land whereon she resided as “the head of a family,” but she enjoyed the usufruct of the other undivided half which belonged to her children, the issue of her marriage with her deceased husband, Spencer Roach.
The decisions cited by counsel for plaintiff, declaring the non-applicability of the homestead exemption to property held in indivisión, preceded, in point of time, the adoption of the Constitution of 1879, wherein it is expressly declared the benefit of the exemption descends to the surviving spouse.
III. Since the contract of 1894 between these parties litigant is to *129be viewed as granting' nothing beyond mortgage rights on the land, such mortgage was and is not exigible on the property, so long, at least, as the same remains the homestead of this surviving spouse and she continues to represent the conditions entitling her to the homestead exemption.
The homestead claim of the surviving spouse on community property, one-half of which she owns in indivisión and the other half of which she enjoys the usufruct of, cannot be defeated by a seizure, under a judgment against them, of the undivided half of the property belonging to her children.
IV. The point is made in the application for rehearing that the defendants took an order of appeal only from that part of the judgment decreeing the property to belong to the plaintiff and gave appeal bond accordingly only to that extent. It is, therefore, insisted that the moneyed judgment against defendants for rents of the land must stand as unappealed from.
While the order of appeal is awkwardly drawn, and the bond of appeal quite equally so, we are able to make out of the two that a suspensive appeal was taken from that part of the judgment, awarding plaintiff the ownership and possession of the land, and a devolutive appeal from the entire judgment.
V. Attention is called to the fact that the prayer of plaintiff’s petition is to the effect that if the contract made with him in 1894 be held not to evidence a sale, it be held to evidence, at least, a mortgage, and for judgment accordingly.
Considering it a mortgage, it yet cannot have effect against the homestead right herein claimed, and, therefore, there can be no recognition of mortgage rights.
Eliminating the mortgage feature of it and its bearings on the homestead, can the court do as plaintiff asks, to-wit: — award him an ordinary moneyed judgment for the amount the evidence in the record shows defendants owe as the result of the transactions between the parties out of which grew the contract of 1894, which amount is $554.07? No; for the reason that it is only the homestead feature of the case which gives this court jurisdiction. We may pass upon the issues presented only in so far as it is necessary to adjudge the homestead question raised.
With that out of the way and leaving only a moneyed demand asserted by plaintiff against defendant, this court cannot take juris*130dk-tion, for the amount is below its minimum jurisdictional limit. The decree of the court, however, reserves to plaintiff all rights in respect to such demands he may have.
Rehearing refused.