Lackland v. Rogers

McCLELLAN, J. Under statutory provisions having reference to proceedings when an execution from a justice’s court is levied on land, and to the time and manner of interposing a claim of exemption of the land so levied on, as the homestead of the defendant, it is settled by the decisions of this court that such claim is effectually waived and lost as against such execution unless it be interposed before air order for the sale of the land is made by the circuit court.-Sherry v. Brown, 66 Ala. 51; Toenes v. Moog, 78 Ala. 558. The claim of homestead exemption was not made in this case until long after the order of sale had been entered by the circuit court. It came too late : and on the issue of exemption vel non the court should have given the affirmative charge requested by the plaintiff in execution. Reversed and remanded.