Lazar v. Caston

Cooper, J., 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 [278] impossible to determine whether one acre or forty is claimed, or where in the subdivision it is located. 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.