On the Merits.
The facts alleged by plaintiff are fully substantiated by the record, and hence the question to be discussed is purely one of law.
In support of their proposition that under the sale to Kingsbury, Gale’s property, which had been judicially recognized as his homestead, passed free of the judicial mortgage resulting from the judgments in favor of Ben Gerson & Son and of Wheeler and Pierson, defendants rely almost exclusively on the decision rendered by our immediate predecessors in the case of Yanwickle vs. Landry, 29 Ann. 330. Such was the practical result of that decision. But in the opinion is to be found the following language : “ It is conceded that a party, in whose favor a certain quantity of property has been adjudicated as exempt from seizure, may sell the exempted property, and his vendee would acquire a title, unincumbered by the mortgage-granted before such adjudication.” If, as the terms of the opinion seem strongly to indicate, the conclusion reached by the Court had been conceded by the parties, it is not a violent presumption to consider that the principle did not emanate from the Court, and that the dictum is not precisely a judicial precedent.
But be that as it may, the case is liable to j ust criticism, as having-gone far beyond the plain scope of the homestead act of 1865. In-another part of the same opinion the following declaration is made and is actually used as a consideration tending to the conclusion adopted by the majority of the Court: “ If we cannot decree the enforcement of the mortgage now because of a legal obstacle, if the law *290exempts the property from seizure so unqualifiedly that a mortgage voluntarily imposed on it by the debtor is held not to bind it, and if the exemption H so complete that the owner may convey the property by an unincumbered title, it would seem that no future contingency can revivify a mortgage thus declared extinct.”
But a mere reference to the statute is sufficient to show that none of the premises of the proposition can find any sanction in its plain and unambiguous meaning ; and that the act contains no language to justify even a suspicion of any legislative intent to impair or affect in any manner the existing laws of Louisiana on the binding force and effect of mortgages, either legal, judicial or conventional.
Hence, the provisious of law which declare that the judicial mortgage which results from the inscription in the proper office of a valid final judgment, takes effect and may be enforced against all the immovables which the debtor actually owns or may subsequently acquire have not been attested or otherwise impaired by the enactment qf that statute. Civil Code, Art. 3328.
Its title is an act "To exempt from seizure and sale a homestead and other property,” and in its body it purports or attempts to do nothing more.
Thehomestead which it exempts from seizure and sale is defined to be “ one hundred and sixty acres of ground and the buildings and improvements thereon occupied as a residence iind bona fide owned by the debtor, having a family, or mother or father, or person or persons dependent on him for support.”
Under the plainest rules of construction the debtor -who ciaims the exemption must combine in himself four indispensable conditions :
1. I-Ie must be the bona ;fide owner of the land.
2. He must occupy the premises as a residence.
3. Pie must have a family or person or persons dependent on him for support.
4. The property must no.t exceed in value two thousand dollars.
Numerous adjudications of this Court are authority for the assertion that the absence of any one of those conditions in the debtor will defeat his claim for exemption, and that to entitle him to the homestead all the conditions must co-exist at the very time that the claim is propounded. Tilton vs. Vignes, 33 Ann. 240; Gallagher vs. Payne, 34 Ann. 1057; Bossier vs. Sheriff, 37 Ann. 263.
Hence it follows that if subsequently to the judgment which recognizes the exemption, any one or all of the conditions which were *291required to justify its rendition should cease to exist, the light to the •ho m es i ead m ust fall.
Under a proper construction of the statute the judgment does not create a homestead, and under it the debtor does not acquire a vested right to the homestead. The judgment must be construed as a declaration of the co-existence of the conditions of the law which authorizes the exemption, and which must be understood as written in the judgment.
In the case of Culvitt vs. Williams, 35 Ann. 324, the Court said : “ It is a judgment which the Court, by reason of its continuing jurisdiction, over the subject matter, can revoke on a proper showing and thus render inoperative. No reservation of the power to that effect was necessary in the original decree. It exists and can be exercised as a matter of course.’’
Under the authority of our laws on the subject of judicial mortgages the legal effect of the two judgments now owned by plaintiff was a judicial mortgage against Gayle’s property, now under discussion, from the moment that they were inscribed in the proper office; and the effect of the judgment which recognized his right to the same as a homestead was to suspend the execution of the judgment against that property, as long as the conditions under which the law granted the exemption continued to exist in fact and in law. The judicial mortgage which resulted from those judgments has the following effects:
1. “ That the debtor cannot sell, engage or mortgage the same property to other persons to the prejudice of the mortgage which is already made to another creditor.”
2. “ That if the mortgaged thing goes out of the] debtor’s hands, the creditor may follow it in whatever hands it may have passed, in so much that the third possessor of it is obliged to pay the debt for which the thing is mortgaged, or to relinquish it to be sold, that the ■creditor may be paid out of the proceeds thereof.” * * * Civil Code, Art. 3397.
Now, by the sale and delivery of the. property to Kingsbury, Gayle became at once stripped of two of the essential conditions under which the property had been judicially declared to be his homestead. He then ceased to own it, and also to occupy it as a residence; and at that very moment the judicial mortgage which attached to it and which had not been cancelled or in the least impaired by the homestead judgment, followed the property as an incumbrance in the hands of the new owner. At the moment that the exemption ceased, the *292mortgage, which had been only dormant, not extinct, became executory, with all its pristine force and vitality. Having severed all his connections with the property thus sold, Gayle could no longer extend over it a shield of protection in the shape of an exemption from seizure and sale, which was personal to himself.
Iiis rights were then restricted to the proceeds of the sale, and these were not screened from the pursuit of his creditors under his homestead judgment. How then can it be argued that the land which had ceased to be his property could be shielded in the hands of a third person, under the effect of a judgment rendered inoperative by his own acts ¶
It is thus made manifest that the views expressed in the YanWickle case find no sanction in the fundamental principles of our laws ; and an examination of all the subsequent decisions of this Court on the statute now under discussion shows that they all fairly antagonize the spirit of that decision, which can be considered as practically overruled.
The views expressed and the conclusion reached by the Court in the case of Chaffe & Son vs. McGehee & Co., 38 Ann. 278, squarely bear out this assertion and settle our jurisprudence adversely to the doctrine of the casein qxxcstion.
The homestead law is therein expounded as follows: “ Hence the homestead only exists sub modo, and * * * a mortgage will bind the debtor’s property against everything but homestead rights, and though inoperatiue as long as the property is subject to the conditions constituting the homestead ; it will become operative the moment those conditions cease to exist. Thus, a judicial mortgage, while inoperative against the pre-existing homestead, would xxnqxxestionably attach to the jiroperty when it ceased to be a homestead.” * * * The decision in the case of Hardin vs. Wolf, 29 Ann. 333, which defendants invoke as sustaining the theory of the YanWickle opinion, cannot avail them, because that case was in terms and completely overruled in the decision of Nugent vs. Carrxxth, 32 Ann. 444, by the same Bench which had rendered both the YanWickle and the Hardin opinions ; and thxxs the doctrine, since uniformly followed, which reqxxires a strict construction of homestead and other exemption laws, was solidly consecrated.
All these considerations lead forcibly to the conclusion, adopted by the lower court, that the judgment which recognized the property now *293in suit, as Gayle’s homestead has since become inoperative, and that it should, therefore, be avoided, in so far as plaintiff’s judicial mortgage is concerned, and that the property passed to the purchaser burdened with said mortgage.
Judgment affirmed.