On the Merits.
O’NIELL, J.The plaintiffs, Prote Watts and his wife, Boxie Watts, have appealed from a judgment denying their claim to a homestead exemption and dissolving a writ of injunction whereby they had arrested the seizure and sale of a tract of about 7% acres of land. The seizure was made by virtue of *103a writ of fieri facias, pursuant to a judgment obtained by tile defendant, A. McOranie, on a written acknowledgment of debt and confession of judgment. The instrument is dated the 1st day of December, 1908, is for $175.06, bears interest at 8 per cent, from its date, and contains the obligation to pay 10 per cent, as attorney’s fees in the event it should be placed into the hands of an attorney for collection, and a waiver of “all homestead exemptions allowed under articles 244, 245, 246, and 247 of the Constitution of 1898.”
The collector employed by Mr. McOranie wrote the name, Frote Watts, at the end of the instrument, and Prote Watts made a cross mark between his names, or touched the pen as evidence of his approval when the collector of the payee made the cross mark. Below the signature is written what purports to be a waiver of the homestead exemption by Boxie Watts, wife of Prote Watts, declaring merely that she did “consent and agree to the [above] waiver and sign the same of her [my] own consent and without any marital influence.” The collector in the plaintiff’s employ also wrote the name, “Boxie Watts,” made another cross mark, and wrote the words “her mark,” beneath which the collector wrote, “I authorize my wife to sign aboye,” and wrote the name, “Prote Watts,” with another cross mark and the words, “his mark.” To the left of what purports to be the last signature on the instrument, the writer signed his name as the only attesting witness.
The injunction was obtained on the denial of the plaintiffs that .the wife, Boxie Watts, had made the cross mark, purporting to represent her signature, or held or touched the pen with which it was made by the defendant’s employe. It is conceded that the plaintiffs are entitled to the homestead exemption if it was not waived.
The plaintiffs and their daughter, who were all present at their residence on the occasion when Prote Watts made his mark on the instrument, or touched the pen, swore that Boxie Watts did not make her mark nor touch the pen. They are contradicted only by the defendant’s employé who wrote the names on the instrument.
[2] The appellee’s counsel contend that the only question presented to this court for decision is one of fact, on which the judgment of the district court is not manifestly erroneous and should not be reversed. The first question to be decided, however, is whether the proof of the signature that was denied under oath complied with the requirements of the law, and that is a question of law.
[1, 3] Articles 2244 and 2245 of the Civil Code require that the person against whom an act under private signature is produced must either avow or disavow his signature, and that, if he disavow it, it must be proved by mtnesses or comparison, as in other cases. Articles 824 and 825 of the Code of Practice also require that, when a demand is founded on an instrument under private signature, the defendant, in his answer, must expressly acknowledge or deny his signature, and that, if he deny it, the plaintiff must prove its genuineness, by witnesses who have seen the defendant sign the act, or who know his signature from having frequently seen him write and sign his name. The latter article contains a proviso that the proof, by witnesses shall not exclude proof by experts or by comparison of the writing, as provided in the Civil Code.
In the case of Ball’s Administrators v. Ball, 15 La. 179, in Davis v. Police Jury, 19 La. 541, and in Temple v. Smith, 7 La. Ann. 562, it was held that the articles of the Civil Code and Code of Practice cited above are not confined to cases where the disputed instrument is the immediate basis of the suit, but apply also to cases where the instrument is offered in evidence on an incidental ques*105tion. Hence the law must have application to an instrument of such importance as a waiver of the homestead exemption, an exemption of public policy that can be waived only by a written instrument, as prescribed in the Constitution.
In view of the fact that, in the Digest or Code of 1808, article 226 of title III required only the testimony of “at least one credible witness,” swearing that he had seen the party sign the instrument, the requirement of the Civil Code of 1825, of the Revision of 1870, and of the Code of Practice, that a disputed signature must be proved by witnesses, when the testimony relied upon is of eyewitnesses to the signing, is significant. It leaves a strong inference, if in fact it does not expressly declare, that, when there is no proof of the genuineness of the handwriting, by witnesses familiar with the writing, by experts or by comparison, the testimony of only one witness that he saw a certain person sign the instrument will not prevail over the denial of that person under oath; because the word “witnesses” is in the plural wherever it is used in these articles of the Codes.
In the case of Robinson v. Arnet, 15 La. 262 (decided in 1840), construing the articles of the Codes on this subject, it was held that the defendant’s denial of his signature of the promissory note on which he was sued required much stronger evidence to warrant a recovery by the plaintiff than in ¿n ordinary case of a general denial. The question of the sufficiency of proof in the case cited was regarded as one of law rather than of fact, and the verdict of the jury in favor of the plaintiff was set aside on the ground that the proof of the genuineness of the signature was not sufficient. That decision was quoted with approval in Huddleston v. Coyle, 21 La. Ann. 148, where it was said that, when the defendant denied that the note sued on bore his signature, the burden of proof was on the plaintiff to prove the genuineness of the signature by such evidence as was required by article 325 of the Code of Practice. There again it was held that the question of sufficiency or insufficiency of proof in such case involved both a, question of law and a question of fact; and the judgment of the district cpurt in favor of the plaintiff was reversed because the evidence did not satisfy the requirements of the law. That decision was cited with approval in the Succession of Leonard, Opposition of Sullivan, 21 La. Ann. 523. And both eases were cited in Pinckard, Steele & Co. v. Hampton, 22 La. Ann. 440, where it was held that the testimony of one witness that he had seen the defendant sign the instrument, with the testimony of another witness that he was familiar with the defendant’s handwriting and knew the disputed signature to be genuine, was a sufficient compliance with article 325 of the Code of Practice. It was said that the law did not require the testimony of two witnesses who had frequently seen the party write and sign his name, and that the articles of the Codes had not been so interpreted in Huddleston v. Coyle, nor in the Succession of Leonard. The two cases last mentioned were again cited and affirmed in Ticknor v. Calhoun, 29 La. Ann. 279, where, in a suit against an absentee, whose curator ad hoc, in his answer to the suit on a written instrument, denied the absentee’s signature, it was held that the plaintiff- should have produced the same strict proof required by article 325 of the Code of Practice, as if the absentee in person had denied the signature under oath.
In James v. Rand, 43 La. Ann. 179, 8 South. 623, citing Robinson v. Arnet, and Huddleston v. Coyle, supra, it was held that the plaintiff was required to produce the proof required by árticle 325 of the Code of Practice in a suit for a personal judgment on a promissory note, even though the note was secured by, and identified with, an authentic act of mortgage.
*107In each, of the cases cited above, the instrument in contest bore what purported to be the signature, not the cross mark, of the person who denied having signed it; and the construction put upon the articles of the Code of Practice and Civil Code was more strict than is necessary to maintain the appellant’s contention in the case before us. The verity of a signature made with a cross mark, or by holding or touching the pen with which some one else wrote the name, is susceptible of proof by only one of the means prescribed by the articles of the Code of Practice and Civil Code. Such a signature, of itself, furnishes no evidence at all, because its verity cannot be established by comparison of handwriting, nor by the testimony of experts or of witnesses familiar with or having knowledge of a certain handwriting.
Our conclusion is that the uncorroborated testimony of only one witness cannot prevail over the denial on oath of the alleged obligor, to prove that he or she signed the disputed obligation by making a cross mark or by holding or touching the pen with which his or her name was written by some one else. To hold otherwise would imply that the requirements of articles 325 of the Code of Practice and 2245 of the Civil Code are entitled to no consideration whatever, and that the defendant’s denial on oath may be disregarded. The law relieves us of the necessity of passing judgment on the veracity of the witnesses.
The judgment appealed from is annulled and reversed, and it is adjudged and decreed that the exemption from seizure of the plaintiffs’ homestead be recognized, and that the injunction issued herein be perpetuated, at the cost of the defendant.