Planters' Bank & Trust Co. v. Savant

On Motion to Dismiss. ST. PAUL, J. Defendant granted a mortgage to plaintiff on the MeCrory plantation on which he lived for $14,000. Thereafter defendant’s wife sued him for a separation of property, and defendant made her a dation in payment of said plantation in reimbursement of her claims against him. Plaintiff then took foreclosure proceedings against said plantation to collect its mortgage. Whilst the plantation, which consisted -of 628 acres, was under seizure and being advertised for sale, defendant’s wife intervened in the proceedings and claimed homestead rights on the plantation to the extent of 160 acres under the provision of Const. 1921, art. 11, § 1. There was judgment in her favor in the court below, recognizing her right to homestead claim, and directing the plantation to be sold in two parcels, one of 160 acres with the house upon it, and the balance separately. This judgment was rendered on July 31,1930. The plantation had been advertised for sale August 2, 1930. On that day plaintiff bid it in, in parcels, paying $2,500 for the 160 acres and $1,000 for the rest. The sheriff retained out of the price of the 160 acres the sum of $2,000 which he held as the wife’s homestead. Const. 1921, art. 11, § 1. And on August 7th *468 plaintiff, took a suspensive appeal from the judgment of July 31st. The wife now moves to 'dismiss the appeal on the ground that plaintiff, by proceeding with said sale and in the manner provided by the judgment of July 31st, did acquiesce therein and cannot appeal therefrom. We think the motion should be denied. O. P. article 567, declares that a person may not appeal from a judgment if he have acquiesced therein by voluntarily executing the same. But we do not think that a person may be said to acquiesce in a judgment who merely abides by so much of a judgment .as is in his favor. Hence it has been held that a party is not prejudiced in his appeal by recording a judgment so far as same was in his favor. Augustin v. Farnsworth, 155 La. 1053, 99 So. 868; Kittredge v. Grau, 158 La. 154, 103 So. 723. Nor can a person be said’ to acquiesce in a judgment so as to preclude an appeal, when he merely abides by that part of the judgment which cannot prejudice his rights or which he concedes to be correct. Hence a person may appeal from so much of a judgment as is prejudicial to him without complaining of the whole judgment. Liles v. N. O. Canal & Banking Co., 6 Rob. 273. And even execution of so much of the judgment as he does not complain of does not constitute acquiescence in so much thereof as he does appeal from. Milliken v. Rowley, 3 Rob. 253. In this case plaintiff had no reasonable ground to complain that land on which the intervener might have a homestead should be segregated and sold separately, to the end that the value thereof might be fixed and it might be determined whether or not the intervener, if she had any homestead rights at all, should retain the land or receive the $2,000 in lieu thereof. On the other hand, plaintiff had a manifest interest in disputing that the intervener had any homestead rights whatever. And we cannot see wherein plaintiff has in any way acquiesced in that feature of the judgment which declares her entitled thereto. Hence we cannot see why plaintiff cannot maintain this appeal. The motion to dismiss is denied.