"Now, we contend that the act of mortgage and homestead waiver, dated March 29, 1905, and the written act of pledge, dated May 1. 1905, must be construed together. The act of pledge was merely the written consummation of the agreement made by all parties at the time the mortgage was given. This fact is patent on the face of the record. This act of pledge fixed the rights and liabilities of all parties, and defendant is a party to both the mortgage and pledge for the payment of the indebtedness therein mentioned, and the homestead was irrevocably bound; but when D. D. Varnado. at a later date, attempts to enlarge the liabilities thereunder, the only effect it can have is to keep alive the mortgage. Both the mortgage and homestead waiver were restricted in their operation by the terms of the act of pledge of May 1, 1905, and, while the mortgage could be perpetuated indefinitely by the act of D. D. Varnado alone, any new conventions which he might make could not affect the right of homestead unless again waived in the manner prescribed by article 246 of the Consti

tution of 1898."

The act of mortgage referred to is in the usual form, and is of date March 29, 1905; and it recites that D. D. Varnado, plaintiff, is indebted to defendant in the sum of $1,500, evidenced by his promissory note of even date, and identified therewith; and that the mortgage is to bear upon the property described in favor of the future holder or holders of said note. Then follows the waiver of the homestead rights by husband and wife.

The act of pledge referred to is of date May 1, 1905, between J. E. Varnado & Bro. and defendants, and is for $3,000, evidenced by two promissory notes of J. E. Varnado & Bro.

Defendants answer:

"The mortgage note itself remaining alive, the homestead waiver is equally alive. The mortgage is an entity, and so is the waiver. When plaintiff waived her homestead in that mortgage, she waived the homestead once and for all so long as that mortgage remained outstanding. "In order to establish the extinction of her waiver plaintiff must show not simply the payment of the first indebtedness which the mortgage note was pledged to secure. She must show the payment of the mortgage note itself. And that she cannot show."

[1] The Code declares that a mortgage is, in its nature, indivisible, and that it prevails over all the immovables subject to it, and

over each and every portion. Articles 2112, 3282; Walton & Kemp v. Lizardi et al., 15 La. 588; Pepper v. Dunlap, 16 La. 163. Being indivisible in its nature, it follows that a mortgage must stand or fall in its entirety. When plaintiffs admit the mortgage to be alive and binding in part, they admit its binding effect in all of its parts; which, of course, includes the special waiver of homestead rights. Defendants have not, by any act of theirs, renounced, or consented to a limitation of the act of mortgage in its character or scope.

[2] The contract of suretyship is strictly construed always; and if plaintiffs had proved that the act of mortgage of date March 29, 1905, and the act of pledge of May 1, 1905, were parts of the same transaction, and that the three thousand dollars of notes mentioned in the act of pledge had been paid, they would have made a better showing. But, the dates of the two acts are a full month apart; they do not refer to one another; and they, therefore, serve to contradict the assumption in argument that the acts of mortgage and pledge were practically one and the same act, and parts of the same transaction. The testimony in the record, admitted over defendants' objections, does not sustain the assumed position, that the two acts of mortgage and pledge were practically one and the same transaction. They are separate and distinct acts, as indicated on their faces, and so far as the record in the case discloses. It is not shown that defendants made an agreement to restrict the act of mortgage to any degree or extent, or that they abandoned the waiver of the homestead by plaintiffs.

The note and mortgage of D. D. Varnado were issued, as before stated, to secure the indebtedness of J. E. Varnado & Bro. to defendants; and D. D. Varnado, by letters found in the record addressed to defendants, authorized defendants annually to retain said note and mortgage as security for the debt owed to them by J. E. Varnado & Bro. Plain

She then proceeds to argue that:

"The parties to the present contract agreed that a legacy, the interest of which should be sufficient to maintain Miss Caldwell for the remainder of her life should be the compensation for certain services to be rendered. This was the price agreed upon by both."

This, in its nature, is not "a certain price," if it can be considered a price at all. It was not stated what would be "sufficient to maintain Miss Caldwell." Mrs. Delmas might have had one opinion, and Miss Caldwell a very different one as to what would be sufficient to maintain the latter. Besides, Miss Caldwell did not testify to any such agreement. She said:

"I [Miss Caldwell] told her [Mrs. Delmas] if she wanted to provide for me, to leave me enough so that I could live on the interest, and that after my death I was willing for it to go to Miss Turner. That was a long time ago. I said that I would obligate myself to leave it to Miss Turner. I said that five or six years ago."

But she did not say that Mrs. Delmas agreed to that proposition, and she is not suing on that contract of 5 or 6 years ago; but on one of 20 years ago. Miss Caldwell, at another time, testified that Mrs. Delmas said in "the last few years of her life that she wanted me to have enough that the interest would pay my board anywhere. Q. Did she ever name any sum? A. She did not name any sum. She said that the inter

est on five thousand dollars would pay my board and allow me what little incidentals I would need. Q. That was on a suggestion of yours? A. When she told me that she was going to leave me something in her will." There was no agreement by them both on a certain price at the time of this conversation. The price should be certain and determinate. Civil Code, art. 2671. Otherwise the contract is null. Civil Code, art. 2672; University v. Piffet, 34 La. Ann. 602; Haughery v. Lee, 17 La. Ann. 22; Jordan v. Mead, 19 La. Ann. 101; Maestri v. Board,

art. 2746, and the engagement could not have been for a longer period than five years. Civil Code, art. 167. Consent of both parties was lacking. There was no agreement between plaintiff and Mrs. Delmas to hire or lease plaintiff's services.

The corroborating circumstances of the alleged contract were (1) that plaintiff lived in Mrs. Delmas' home for 21 years; (2) that Mrs. Delmas told Mrs. Clarke in June, 1909, "I intend to leave Miss Ginnie (Caldwell) one thousand dollars"; to Mrs. Oglesby, "Ginnie must never want"; to Mr. Munson, a few years ago, to send a notary to her as she wanted to make a new will and provide for Miss Caldwell; "that when she was sick previously she had given Miss Virginia a check for $600, and afterwards took said check back, telling me her intention was to make it good in her will"; to Dr. Roussel, about two months before she died, that she wanted to provide for Miss Ginnie, and to send a notary to her. The most that can be said of these expressions of Mrs. Delmas is that they expressed an intention on her part to leave plaintiff a legacy of an uncertain sum as a liberality, not in the discharge of an obligation, which liberality she failed to carry out. This cannot be construed into a contract of employment, or become the basis of a judgment. Unequivocal words, expressive of mere intent, do not make an obligation. Civil Code, art. 1814; Watson v. BarAnd the ber, 105 La. 804, 30 South. 127. court is powerless to assist plaintiff by making a will for the deceased, containing any expressed intentions of hers.

The attending circumstances which contradict, rather than corroborate, the contract sued upon are: (1) That Mrs. Delmas made a will in which she did not mention a contract with plaintiff, or make provision for her; (2) that Mrs. Delmas failed to mention

to her most intimate friends, or to any person disclosed by the record, that she had made a contract with plaintiff; (3) that she wrote to plaintiff, while away on a visit, that she was breaking up housekeeping to live with friends, and for plaintiff not to return; (4) to Miss Turner, she said that she had not willed plaintiff anything, and that she would not change her will; to Mr. Gooch, "that she had done all she could for Miss Ginnie and that she should go with her people;" to Mr. Williams, that in her will she had left legacies to certain members of her family which she wished to change and "to leave everything that she had to Miss Turner"; (5) plaintiff testified, "I never tried to influence Mrs. Delmas to leave me a nickel"; (6) plaintiff told Miss Turner and Mrs. Clarke that she had no idea of pay from Mrs. Delmas when she performed services for her, that she did it out of gratitude and for pure love for her; (7) she said to defendant, after the death of Mrs. Delmas, that she did not want any of Mrs. Delmas money as it was not hers by right; (8) she said to her nephew, who came to see her, "that everybody said I ought to be compensated, and he asked me if I wished him to see to it for me, and I told him I supposed so, because I had nobody else, and he came to Franklin and engaged Mr. Milling for me and went on back to Texas"; (9) and plaintiff fixed upon the amount claimed after Mrs. Delmas' death for the value of the services rendered by her, and not for what she thought Mrs. Delmas was going to leave her

in the will.

There was judgment in favor of plaintiff for $511.67, the value of services as nurse during the last year of Mrs. Delmas' life. The plea of prescription of one year, filed by defendant, had been sustained.

Defendant has answered the appeal, and asks that the judgment appealed from be amended by rejecting plaintiff's claim in its

entirety, or that it be reduced. Defendant argues that the suit being based upon a contract, and the court having found that there was no contract, that the suit should be dismissed. An examination of the petition discloses that while plaintiff places her main demand upon an alleged contract she also alleges that she rendered services as a nurse, which were not embraced within the terms of the contract. The evidence of the services as nurse was properly admitted, and the trial judge has properly estimated their value. Succession of McNamara, 48 La. Ann. 45, 18 South. 908.

While it is true that Mrs. Delmas employed trained and untrained nurses to attend her, it is also true that plaintiff assisted in this particular and necessary work.

The judgment appealed from is affirmed at appellant's cost.

(55 South. 697.)

No. 18,423.

In re BELL.

In re HOLSTON.

(June 5, 1911.)

(Syllabus by the Court.)

INSANE PERSONS (§ 33*)—INTERDICTION-PETITION FOR APPOINTMENT Of Curator-SUFFICIENCY.

Where a petitioner alleges that he is halfis over the age of majority and is subject to an brother of a person named, that such person habitual state of insanity, that he has never been interdicted, but that another person named has been appointed his curator, and that such appointment is void and should be rescinded, and the petition concludes with a prayer for the citation of the person sought to be interdicted, for judgment of interdiction, and curator, the petition discloses a cause of action. for the appointment of a curator and under[Ed. Note. For other cases, see Insane Persons, Dec. Dig. § 33.*]

Appeal from Thirteenth Judicial District Court, Parish of Grant; W. F. Blackman, Judge.

In the matter of W. T. Bell, interdict. Application of Andrew J. Holston for the re