Dissenting Opinion.
Manning, O. J.The enactment of homestead laws has been frequent of late years. The arguments in their support are specious, and attract to them popular favor. Whatever may bo the reasons that induce the Legislature to enact them, our solo duty is to ascertain what is the legislative will, and when ascertained to give effect to it.
All statutes which take property out of commerce and attempt to impress upon it the character of inalienability, and all statutes which arc in derogation of common right, are to be strictly construed. The general law regulating the relations of debtor and creditor is, that the property of the debtor is the common pledge of his creditors. Laws which exempt any portion of the debtor’s property from the pursuit of tlic creditor are exceptions to the general rule, and can not be extended by implication. Thus, it has been held by this court that predial property alone and not urban is exempt to the value of two thousand dollars under the statute of 1865. Crilly’s case, 25 An. 219; Hargrove vs. Flournoy, 26 An. 645.
The decisions in our sister States upon many questions arising under their homestead laws are conflicting. This is due in part to differences in the laws, and in part to the animus which pervades the judicial construction of them. An attempt has recently been made (Smyth on Homesteads) to systematize this branch of modern law, and the writer points out with accuracy, the dissonant characteristics of the laws in the States, showing the variant rules that have been adopted.
We have recently held that a mortgage, executed by a debtor upon *343the only land ho owned, which in quantity and value was loss than that-exempted by our statute, could not be enforced. Van Wickle vs. Landry, 29 An. 330. In that case we were strongly pressed to restrict the operation of the law to the time when the land is occupied as a homestead, and my brother Spencer approved that limitation and qualification of the debtor’s right of exemption, and dissented from the opinion of the court. There was certainly ample room for difference of opinion on that question, and the same writer, to whose works allusion was just now made, informs us that that view still obtains in a few of the States, though the more recent view, he says (Smyth, sections 239, 210), is that expressed by a majority of the court in that case. In rendering the opinion Of the court I disclosed a mental oscillation that was personal to myself upon the point involved, which was finally determined by the influence of the principle of stare clecisis. But wo are asked to go still further now. Then we held that the debtor could not bo presumed to waive his legal right. Now we are required to disregard his express waiver. I can not assent to that doctrine.
The chief ground and the only tenable one on which that doctrine can rest here is the assumed public policy of the law, for there is no expression in our statute that warrants, of I would rather say compels, that construction. Now, if it be a distinct feature of public policy as shadowed forth in our homestead law that the family should bo protected from the improvidence or misfortune of its head, why is this protection so partial and distinctive in its nature that it will not apply to those who live in towns, and whose families might be supposed to need the protection and to deserve the beneficence of the Legislature as well as the rural inhabitants.
May it not be true that judicial construction lias enlarged the scope of these exemption laws ? It has been held that a widow, who became a debtor durante viduitate, was entitled to the benefit of our homestead law (Calvit vs. Hoy, Opinion Book 43, p. 358), and I think upon good grounds, all the other requisites concurring. But it has never been held until the present case that a married woman was entitled to it, although the law of this State makes her an object of its peculiar care. The statute does indeed specify that no debtor shall be entitled to the exemption provided for in it whoso wife shall own in her own right and be in the actual enjoyment of property worth more than one thousand dollars. R. S. 1870, section 1691. Does this mean, or are we to infer from it, that the wife shall bo entitled to the exemption provided the husband owns nothing ? The language does not bear that construction. That meaning, to my apprehension, is not oven latent in it, certainly not patent upon it. And yet it is an admitted rule of construction that statutes like this can not bo enlarged, by implication.
*344There is great force in. the argument that when a person performs the deliberate act of executing a mortgage to secure a debt, that act' shall be hold to bo a tacit but perfect waiver of all right of exemption provided by law. It has been already observed that wo refused to adopt that rule; but when the debtor not only executes the mortgage, but expressly and solemnly declares that he renounces all benefits of the exemption laws, and this declaration is recited in the act, I do not think he should bo permitted afterward to gainsay it under any circumstances. I do not think the law comes to his relief and says “ I will help you to speak untruthfully as well as to act dishonestly, and will interpose my shield between you and him who trusted first to your honesty to pay your debt, and next to your veracity that you would not evade it under cover of a special law.”
There is much to bo said also in favor of that public policy which is a conspicuous feature of the laws of all countries, and which is the basis of public morals, viz.: that compulsory fidelity in the discharge of money obligations elevates the character of the citizen, and by consequence promotes the public virtue. The State that visits by the penalty of its laws the violation or disregard of pecuniary engagements with the greatest rigor is the State that has the highest standard of public honor. Wherever the law offers a premium to dishonesty by providing means of escape to the citizen from the payment of his debts, whether the mode bo by exemption of property from seizure or by the equally convenient one of hiding it under cover of another’s claim, there will bo found the greatest laxity of the public conscience and the most shameless disreregard of public and private obligations.
When, therefore, there is not an express statute conferring upon the party seeking to evade an obligation the unquestioned legal right to escape the consequences of that obligation, and lie seeks tó justify it upon the ground of public policy as the motif of the construction he invokes, it may not be improperly answered that the same considerations forbid the multiplication of those devices by which he who promises is excused from performing and ho who renounces a benefit is permitted to enjoy it in spite of his renunciation.
Seexcer, ,T. I concur in the opinion of Mr. Chief Justice Manning.