In this case, plaintiff being the purchaser of an interest in Wilson's Exchange Hotel, to wit: the excess over $ 5,000, brings suit in ejectment to recover.
On trial, the respondents moved for and obtained a nonsuit, on the following grounds, to wit:
1. That it appears from the plaintiff's pleadings and proof that Ezekiel Wilson has a homesteadright in the premises, claimed in the complaint, which has never been defined and set apart.
2. And that by reason of this homestead right, the plaintiff has not shown any title to any particular part of the premises on which a judgment could operate.
These are good grounds for a nonsuit; because the plaintiff must show such a description of the premises as will enable the sheriff to deliver possession after judgment. The excess over $ 5,000 cannot be localized. (Jackson v. May, 16 Johns. 184; Cook v. McChristian , 4 Cal. 27, last clause of opinion; also, see Fenwick v. Floyd's Lessee, 1 Har. & Gills. R. 172; Clark v. Clark , 7 Vt. R. 190; Sawyer v. Titts, 4 Stew. & Porter, 365; Black v. Hepburne, 2 Yeates Pa. R. 331; Farley v. Craig, 3 Greene, 192, N. J. R.)
And the third ground for nonsuit was: That it appears from the plaintiff's evidence that Wilson occupied the premises with his family at the time of the sale and ever since, and in any suit for the premises he should be made a party.
JUDGES: Mr. Justice Heydenfeldt. Mr. Chief Justice Murray and Mr. Justice Terry concurring.
OPINION
HEYDENFELDT, Judge
The plaintiff cannot recover upon his sheriff's deed, because the interest conveyed to him is undefined and uncertain.
Under the Homestead Act, it is the duty of the appraisers to ascertain and report the value of the land. Then as five thousand dollars taken from the sum of the valuation is to the remainder of the valuation, so will be the proportion of undivided interest in the property which is subject to be sold under execution.
To illustrate this so as to prevent any misapprehension: suppose a piece of property to be sold, except the homestead interest; if the value of the whole is found by the appraisement to be twenty-seven thousand dollars; then as five thousand dollars is five twenty-sevenths of the sum, the remainder is twenty-two twenty-sevenths, and consequently, it is ascertained that the proportion to be sold out of the property is twenty-two twenty-sevenths of the whole undivided.
This mode will render to each party in interest a certain and definite estate. Without giving this construction to the statute, some of its provisions would be beyond the power of a Court to enforce.
Judgment affirmed.
CONCUR
MURRAY; TERRY
Mr. Chief Justice Murray and Mr. Justice Terry. We concur in the foregoing opinion, reserving any question which may hereafter arise as to whether buildings used for hotels, stores, etc., are susceptible of dedication for homestead purposes.