Gary v. Eastabrook

By the Court.—Mr. Justice Heydenfeldt: 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 inode 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.

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.