Lazar v. Caston

• Decision Date: 24 February 1890
• Citation: 67 Miss. 275,7 So. 321
• Court: Mississippi Supreme Court
• Parties: A. J. LAZAR v. A. S. CASTON ET AL

7 So. 321

67 Miss. 275

A. J. LAZAR v. A. S. CASTON ET AL

Supreme Court of Mississippi

February 24, 1890

FROM the circuit court of Amite county, Hon. J. B. CHRISMAN Judge.

The plaintiff, A. J. Lazar, instituted this ejectment suit against A. S. Caston, E. A. Caston and Mary E. Caston, to recover one hundred and sixty acres of land. The land is described in the declaration, and in the deeds under which plaintiff derives title as, "north part of S.W. 1/4 of lot 2, south half of lot 4, and seventy-eight acres in the south part of lot 5, of section 12, township 2, range 2 east," and plaintiff claims as purchaser at a sale under execution against the defendants.

The defendants pleaded not guilty, but none of them asserted any defense except A. S. Caston, who admitted, however, on the trial that he did not claim or have title to any lands in the south part of lot 4, or the north part of the S.W. 1/4 of lot 2. As to the rest of the land sued for, he claimed that it constituted part of his homestead and the proof sustained this claim.

The plaintiff asked the following instructions:--

1. "The court instructs the jury for the plaintiff, A. J Lazar, that they should find for the plaintiff, Lazar, that he recover the possession of the north part of the S.W. 1/4 of lot no. 2, and the south half of lot no. 4, in section no 12, township 2, range 2; and they may find such amount for damages for the rent of the above two [2] lots of land as they may believe is warranted by the testimony."

2. "Unless they believe from the preponderance of the testimony in the case that the seventy-eight acres in the south part of lot 5 was a part of the homestead of A. S Caston and E. A. Caston, they should find for the plaintiff such amount for damages as they may believe is warranted by the testimony."

3. "Although they may believe from the evidence in this case that the seventy-eight acres in the south part of lot 5 was a part of the homestead of A. S. and E. A. Caston, yet under the facts in this case the plaintiff is entitled to recover as to the said lot 5, and they should so find."

These instructions and also those asked by the defendant were refused, and in lieu of them the court instructed the jury to find a verdict for the plaintiff subject to the homestead exemption of defendants, A. E. and A. S. Caston, and their right to the possession thereof. The jury returned a verdict in the language of the instruction, and judgment was rendered in accordance therewith. Afterward plaintiff moved the court to amend the judgment so as to make it correspond with the "evident intention of the verdict of the jury as supported by the facts, so that the same shall state that plaintiff shall recover for the lands in lots 2 and 4, and the defendants, for the land in lot 5." This motion, as well as the motion for a new trial, was overruled and plaintiff appeals.

Judgment reversed.

T. McKnight, for appellant.

The first instruction for plaintiff should have been granted. The only defense asserted by appellee was as to that part of the lands in controversy in lot 5. He disclaimed any residence upon, or ownership of the remainder of the land.

The second instruction submitted to the jury the question of fact whether the 78 acres in lot 5 was part of the homestead, and was perfectly applicable to the case as...