| Ala. | Dec 15, 1876
The provisions of the constitution of 1868, and of the statutes in force from 1865 to that time, concerning the exemption of homesteads from execution, required that the property so exempt should include the dwelling-house thereon, or house occupied as such by the claimant.— Kaster v. McWilliams, 41 Ala. 302" court="Ala." date_filed="1867-06-15" href="https://app.midpage.ai/document/kaster-v-mcwilliams-6507381?utm_source=webapp" opinion_id="6507381">41 Ala. 302; McConnaghey v. Baxter, and Miller v. Marx, at the present term.
In the present case, the property claimed as exempt under those laws had no dwelling-house on it, and was not part of, or adjacent to any land, on which appellant had a dwelling-house. It was remote from appellant’s residence, and was
2. The objection made to the sale of the land in controversy by the sheriff, to his own wife, might have been effectual if application had been made to the court from which the execution issued, to set the sale aside, or to a court of chancery for such relief. A sale by one acting as agent, trustee, sheriff, or otherwise, of the property of another, to himself, is voidable at the option of the owner of the property, but not void. This rule is applicable to a sale by such intermediate vendor to his wife. If, though, notwithstanding a sheriff’s sale of real estate, the defendant in execution intends to insist that he continues to be the owner, some step must be taken to prevent the sheriff’s deed from operating as a conveyance. Action must be had for undoing what has been done, that the parties may be restored, as nearly as possible, to their situation before. It will not do, that the party to whom the option belongs, either to insist upon or to repudiate the sale, shall both keep the land, and have the benefit of the purchase-money. If nothing be done to procure a rescission, it must be presumed that the owner acquiesces in the sale, and the deed will be received as a valid conveyance of the property to the purchaser. This was the condition of the case now before us, when on trial in the Circuit Court.
Its judgment must be affirmed.