Concurring Opinion.
Marr, J.The exemption of property from the pursuit of creditors is by no means a new feature in the law of Louisiana. The Civil Code of 1825, article 1987, exempted the right of personal servitude, of use and habitation, of usufruct to the estate of a minor child, the income of dotal property, money due for the salary of an office, and wages, or compensation for personal services.
The Code of Practice, article 644, exempted the linen and clothes, and the beds of the debtor and his family, his arms and military accoutrements, and the tools and instruments necessary for the exercise of the trade or profession by which he gains a living.
The act of 1843 exempted, in addition, corn, fodder, hay, provisions, and the supplies necessary for carrying on the plantation to which they are attached for the current year.
In 1852, by act No. 255, the widow and children left in necessitous cir*339cumstanees were entitled to be paid in preference to all other creditors, except the vendor, as much as one thousand dollars out of the effects of the-succession; and in the same year, by act No. 324, the lot or piece of ground and buildings thereon occupied as a residence and bona fide owned by the debtor having a family were exempted to the value of one thousand dollars; also, necessary housekeeping effects to the value of two hundred and fifty dollars, the books of the family library, family portraits and pictures, and the books, instruments, and apparatus of the trade or profession of the debtor.
Then carné the act of 1865, which exempted one hundred and sixty -acres of ground and the buildings and improvements thereon, occupied as a residence and bona fide owned by the debtor having a family, or mother, or father, or person or persons dependent on him for support; also, one work-horse, one wagon or cart, one yoke of oxen, two cows and calves, twenty-five head of hogs, or one thousand pounds of bacon or equivalent in pork, and, if a farmer, the necessary quantity of corn ¿md fodder for the current year, not to exceed two thousand dollars in value.
This was followed by the exemption of household and kitchen furniture, not exceeding six hundred dollars in value, sewing machines, and pianos. 1872,1874,1876.
Similar exemptions are to be found in the statutes of most if not all of the other States, and in the laws of the United States. The act of Congress which authorizes collectors of internal revenue to enforce the payment of taxes by distraint and sale of the property of delinquents without judicial process (Revised Statutes, section 3187) and the bankrupt act (Revised Statutes, section 5045) make liberal exemptions in favor of the debtor who is the head of a family, and the latter act exempts such additional property as may be exempt by the laws and constitution of ■the State in which the debtor has his domicile as existing in the year 1872.
The universality of these laws, and the steady enlargement of the exemptions in our own State, have closed the question as to their expediency, if that could be the subject, legitimately, of judicial inquiry; and these laws are not to be regarded with disfavor nor construed otherwise than as remedial statutes, the plain manifestations of a well-settled public policy.
The homestead act of 1865 exempts from seizure and sale under execution the property of the debtor having a family, etc., dependent on him for support, occupied as a residence, etc. It would be a narrow and strained limitation of this act to limit it to men alone, and to exclude from its benefits a woman, wife of a deaf mute, an imbecile, who can give her no assistance in providing for his wants and necessities and those of their offspring. The law looks to the head of the family, to the *340person who is the debtor, and upon whom rests the burden of maintaining the family; and its terms are broad enough to include that person,, whether husband, or wife, or widow, or a man or woman never married.
The right of the debtor to claim this exemption is in no manner impaired by the granting of a mortgage, and it is difficult to perceive the advantage, in a moral point of view, in favor of the mortgagor who has not, over the mortgager who has, waived the exemption. In either case the exemption would deprive the mortgagee of the security given by a solemn contract, a formal hypothecation; and in neither case would the creditor have parted with his money, or given the credit,'if he had believed that it was in the power of the debtor to deprive him of this-security by any plea or claim.
It has been objected that this exemption ties up and keeps out of commerce a large amount of property. But this is a question of mere expediency, falling within the exclusive domain of the legislative department, and it can not be dealt with by the judiciary. Besides, as the debtor who has not granted a mortgage and the mortgager who has not waived have the unquestionable right to insist upon this exemption, tho amount of property in commerce will not be materially increased by refusing the exemption in the comparatively few cases in which the most needy, the-smallest proprietors, might be forced by the pressure of their necessities to agree in advance not to claim the benefit of the law.
The mortgager who claims the benefit of this exemption cheats the-hopes and expectations of his creditor as effectually where he has not waived as where he has waived; because it is merely idle to suppose that a creditor would take or rely upon a mortgage which he knew at the time the law would not permit him to enforce. He who contracts a debt binds himself legally and morally to pay that debt. If he grants a mortgage to secure it he merely superadds the special engagement that the property mortgaged shall be applied to the payment of that debt by preference; and when he interposes a plea or a claim by which this hypothecation is defeated he violates his moral and legal obligation as completely, and inflicts precisely the same injury upon his creditor when he has not as when he has agreed formally and in advance that he will not interpose that plea or claim. Tho man who grants a mortgage contracts the solemn obligation that the property shall, in case of default on his part, bo seized and sold in satisfaction of tho debt intended to bo secured; and ho contracts no additional moral or legal obligation by formally stipulating that ho will not do that which the mere giving of the mortgage necessarily implies that he will not do, prevent in any way tho realization of the benefits which his contract professedly secures.
If we should decide that tho debtor who has waived may not claim, while tho debtor who has not waived may claim, tho benefits of the *341homestead exemption, we would virtually declare that it is in the power of the citizen to abrogate by his conventions the laws enacted in view of the public interest and public policy. The homestead exemption is not' designed for the benefit of the debtor; it has in view his helpless dependents, and it intends to afford them a home and a shelter, and the means of living, of which it will not permit them to be deprived by his folly or his misfortune.
Our law-makers have not seen fit to' make the homestead inalienable, nor would it be wise to attempt to do this. It may be to the interest of •the family to abandon the domicile and seek a home elsewhere, and no law ought to or can impose any restriction upon this right. The power to sell for a price freely agreed upon is very different from the power to consent in advance to a forced salo. The mortgagee usually leaves a wide margin between the value of the property and the debt to be secured, and he may force a sale for cash at a most unpropitious time at -two-thirds of the appraised value.
The debtor who waives the benefit of this exemption in advance occupies no worse position, morally, than if ho should agree at the time of contracting a debt that ho would not protect himself against its enforcement by a subsequent discharge under the bankrupt or insolvent laws. He who is driven by his necessities to mortgage the home of his wife and his children, by the mere act of granting a mortgage instead of •selling the property, manifests the wish to retain it, and the hope that he may be able to save it by paying the debt. Under the pressure of his wants, deluded by his hopes and expectations, he consents to terms which ho would never think of submitting to under other circumstances, and puts it in the power of the creditor to deprive him of the property for a price far below that which ho might have obtained by voluntary sale. If he may, by the stipulations of the mortgage, subject to seizure and sale the property legally declared to be exempt, the whole object and policy •of the law will be defeated, and the needy and helpless, the very persons designed to be protected, will be deprived of the benefits intended specially for them.
Every one who takes a mortgage understands that it is subject to the exemptions of the homestead act; and every one is held to contract with I’eference. to the law. The exemption is absolute.- Nothing in the act indicates the intention of the Legislature to make it dependent on the will of the debtor, and while the law may not deprive the citizen of the right to sell at his pleasure that which is his, it may well refuse to countenance, by giving effect to engagements in violation cf its policy and prohibitions. An individual may renounce what the law has established in his favor alone, but he can not renounce that which is intended for the benefit of others and for th<5 public good. IR. C. C., articles 11,12-.
*342Homeless, helpless paupers are a curse to society, and the homestead act and other exemption laws are designed to protect the public as far as possible against this grievous burden. If it is once understood that the property which the law declares to be exempt can not be sold under legal process, whether with or without a previous contract and waiver, all pecuniary engagements will be made with reference to that exemption, and credit will rest upon a more secure, -because a better defined, basis. We readily accept and adapt ourselves to settled and uniform rules of property; and it is not the exemption itself, it is the uncertainty as to its meaning and extent, that impairs confidence and injures credit. Let it be understood that the exemption is absolute, and no creditor will trust to or rely upon the exempted property, or estimate it in making his contracts and engagements.
I concur in the opinion and decree pronounced by Mr. Justice Egan, but the importance of the subject warrants the separate expression of ■my views of the law.