This was an action of ejectment. The plaintiff waived his right to mesne profits, and upon the conclusion of the evidence the court directed a verdict in his favor for the premises in dispute. It appeared from the record that the land was owned by the National Loan and Trust Company, which divided the premises into lots, and made a sale thereof according to a plat. All the lots were sold at a uniform price, and a drawing was had, and deed made to each lot bearing the number of the drawer. It was agreed that the plaintiff held title to lot number 26 in block 45, and that the defendant held title to lot number 24 in the same block. Both parties contended that their respective deeds covered the premises in dispute on which was located a dwelling-house known as the “old Kennedy house.” The land was described in the respective deeds by the lot number and block 'number of the grantor’s subdivision. The only issue, therefore, was to locate the lot as platted and defined by the grantor in making the sale. Upon this point there was a conflict in the testimony, and it was error for the court to direct a verdict in favor of the plaintiff.
The plaintiff sued out a cross-bill of exceptions, averring that the waiver of his right to mesne profits was made on the belief that the defendant would acquiesce in the verdict, but, since the defendant has filed a bill of exceptions, if the case is to be reversed, the plaintiff desires that it be reversed on both bills of exception. The cross-bill of exceptions presents no point for decision. It is accordingly dismissed.
Judgment on main bill reversed. Cross-bill dismissed.
All the Justices concur, except Atkinson, J., absent.