On Rehearing.

Motion to Dismiss

The opinion of the Court was delivered by

Plaintiff’s object in this suit is:

1. To obtain a decree annulling two judgments; one in favor of Haller & Bro. for the sum of $214.00, and auother in favor of Stephens in the sum of $290.00; both rendered against her pre-deceased husband and herself, on the ground that the debts sought to be enforced thereby, were debts of her husband.

2. To have her homestead rights recognized on a portion of the property seized in execution of said judgments, in ease the validity of the latter be maintained.

3. To enforce the rights of herself and of her minor children under the act known as the Homestead Act of 1852, in the event of her being defeated on both of her previous demands:

The point made in the motion is that the jurisdiction of this Court must be tested by the amount involved in the judgment sought tobe annulled or enjoined.

As shown in our previous opinion, the point applies successfully to the alleged nullity of the two judgments, the aggregate amount of which is not equal to the lower limit of our jurisdiction.

The motion must also prevail as to the demand for the sum of $1000.00 under the Act of 1852.

As the amount claimed does not exceed $1000.00, and as the prayer for the same is made in the alternative, it must therefore be treated as a separate demand, and hence it did not fall within our jurisdiction, as defined at the time that our previous opinion was rendered, anterior to the promulgation of the amendments to Art. 81 of the Constitution, which were promulgated on May 15, last past 1884. Nor. can it be maintained under our jurisdiction, as then amended, by operation of which we are vested with jurisdiction over all questions of homestead, irrespective of the amount involved. This point came up in the recent case of the State ex rel. John Davidson vs. the judges of the Court of *265Appeals, No. 9312, not yet published. In that case, after maturé reflection, we held that the amendment on this subject was not intended to cover claims arising under the provisions of the Act of 1852—erron-eously entitled a “Homestead Act.”

The motion to dismiss must therefore prevail as to those two demands.

But from the foregoing reasons it follows that we are clearly vested with jurisdiction over the claim of a homestead under the provisions -of the Act of 1865.

At the time that we rendered our previous opinion, we asserted jurisdiction on the ground that, from the pleadings and from the evidence, it appeared that the value of the property claimed as a homestead • exceeded one thousand dollars, and that this was the amount in dispute under that part of plaintiff’s suit. Gross vs. Routon, 33 Ann. 1046.

Now that the lower limit of our jurisdiction has been raised to two thousand dollars, we would be stripped of jurisdiction, were it not for the exceptional nature of the demand, over which we must retain jurisdiction by virtue of the amendment hereinabove referred to. The motion to dismiss must, therefore be denied as to that feature of the issues presented by the pleadings. Under these views our investigation

Ok the Merits

must be restricted to plaintiff’s claim of the tract q¡f land, which she inherited form her father’s succession, as a homestead under the Act •of 1865.

Her claim thereto is resisted on two grounds :

3. That she did not occupy the tract of land as a residence, within the requirements of the act.

2. That she conld not claim a homestead adversely to the judgment of Haller & Bro., because it enforced a contract entered into in 1861, as evidenced by a promissory note of that year, long previous to the enactment of the Homestead legislation of 1865.

1st. In our previous opinion we held that plaintiff had made suffi•cient proof of her residence on the tract of land in question. But a second examination of the voluminous record in the case has created a different impression on our minds and has led to a different conclusion. From the evidence it appears that from the date of her marriage to that of her husband’s death in 1875, plaintiff continuously resided with him in the town of Natchitoches where he filled several important public offices, including that of clerk of this Court when it held sessions at that place, and that after his death she continued to live in the same *266town, without interruption, until September, 1880, when she announced her intention to remove her residence to the “Tauzin tract” which she now claims as her homestead. But there was then, and there is yet, no residence on the place, and she soon abandoned the idea of occupying, with her five children, one of the three laborers’ cabins Ilion on the placó-

la July of the same year she bad made and registered a homestead declaration under the provisions of the Act of 1880, and her remora to the place was in furtherance thereof. But in point of fact she was unable to put up with the inevitable hardships which the evidently advised theory involved, and she returned to lier dwelling, her real borne- and the abode of her children in the town of Natchitoches, where-she was living in fact and in law, when the seizure was made.

It is too plain for argument that snob a mode of establishing a residence does not comply with the requirements of the Homestead Act of 1865. As wo had occasion to say in the case of Tilton vs. Vignes, 38 Ann. 240, that act “concedes an exemption'in derogation of common right, which should be strictly construed. Parties who claim a dispensation under its protective pale, must disclose and establish a clear case within its purview.” Plaintiff lias failed to place her case wit-hiu the scope of the rule.

Under these views we eliminate a discussion of the’ second ground-of resistance which defendants had invoked.

It is therefore ordered that our previous decree be set aside, and it is now ordered, adjudged and decreed that the judgment appealed from, be affirmed at plaintiff’s costs in both courts.