Lazar v. Caston
Lazar v. Caston
Opinion of the Court
delivered the opinion of the court.
The court properly refused the instructions asked by the plaintiff.
The first instruction is erroneous in so far as it announces the right of the plaintiff to recover the, “ north part of the southwest quarter of lot 2.” This description, which runs through the plaintiff’s declaration and chain of title, is void for uncertainty. It is
The second instruction is erroneous in its assumption that the homestead exemption may be allotted in an action of ejectment. Homesteads are to be set apart by commissioners, who view the premises, and not by a jury proceeding on evidence only.
We find no facts in the record warranting the third instruction asked.
But the court erred in directing the jury to find a general verdict for the plaintiff, subject to the defendant’s homestead rights in the whole tract of land. The defendant himself denied that he owned any land in lot 4, a part of which is demanded by the plaintiff. If this be true, his homestead right cannot extend to that lot.
On the facts as they now appear, the verdict should have been for the defendant as to the land in lot 2, for the plaintiff for the south half of lot 4, and for the plaintiff for the seventy-eight acres in lot 5, subject to the defendant’s homestead rights therein.
Judgment reversed.
Reference
- Full Case Name
- A. J. Lazar v. A. S. Caston
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- 1. Deed. Description. Patent ambiguity. A description of land in a deed or declaration as, “ north part of southwest quarter of lot two,” giving section, township and range, is void for uncertainty. 2. Homestead Exemption. Allotment, how made. Necessity for commissioners. The homestead exemption of a defendant in land sold under execution cannot be allotted in an action of ejectment brought by the purchaser. A homestead must be set apart in the first instance in accordance with the statute by commissioners who view the premises, and not by a jury acting on evidence only. See Rhyne v. Guevara, ante, 139. 3. Ejectment. Homestead in part of land. Judgment subject thereto. Where plaintiff sues in ejectment for land bought at sale under execution against the defendant, and the latter on the trial admits that he does not own a part of the land, but defends as to the rest by proof that it is part of his homestead, it is error, for which plaintiff may complain, to render a general judgment for plaintiff, subject to the defendant’s homestead right in all the land. This right cannot extend to the part not claimed by the defendant.