Section 6-10-38

Contest of exemption claim - Proceedings when homestead found to exceed value or area allowed.

(a) If, on the trial of a contest of a claim of homestead exemption, it is found that the homestead as claimed exceeds $5,000 in value (or if a husband and wife have both claimed the exemption to which each is entitled, $10,000), or 160 acres in area, the court shall forthwith issue an order to the sheriff, returnable in 30 days thereafter, commanding him to summon three disinterested householders or freeholders of the county in which the homestead is situated, who, after having been sworn by the sheriff or some officer authorized to administer oaths to faithfully discharge their duty, shall, if practicable, set off and allot, by metes and bounds, the homestead exempt to the defendant from levy and sale under process, having regard both to the quality and value of the real estate and to the selection of the defendant and taking land most contiguous to the dwelling, and including such dwelling and appurtenances. The commissioners, as soon as practicable, shall make return of the homestead so allotted and set off by them, in writing subscribed by them, to the sheriff, who shall make due return thereof to the court issuing the order; and the homestead, thus allotted and set off, shall be released from the levy and the residue of the land sold under the order of the court, unless for good cause shown, the courts shall set aside the commissioners' return, in which event another order for summoning commissioners shall be issued. If the commissioners summoned, or any of them, shall fail to act, the sheriff shall summon others to fill their places.

(b) If the homestead, after having been reduced to its lowest practicable area, still exceeds in value $5,000 (or if a husband and wife have both claimed the exemption to which each is entitled, $10,000) thereby rendering it impracticable to allot and set it off under subsection (a) of this section, the commissioners shall so make return to the sheriff, who shall thereupon proceed, as in other cases, to advertise and offer the same for sale under the process. If at the sale he receives a bid therefor exceeding $5,000 (or if a husband and wife have both claimed the exemption to which each is entitled, $10,000) he shall sell the same, and of the purchase money $5,000 shall be paid to the defendant (or if a husband and wife have both claimed the exemption, $5,000 paid to each), or into the court for him or her, in lieu of the homestead, and the excess only shall be applied to the satisfaction of the process; but if no bid in excess of $5,000 (or if a husband and wife have both claimed the exemption to which each is entitled, $10,000) shall be received, the sheriff shall discharge the levy at the plaintiff's cost and return the process, and thereafter no process issued to enforce the plaintiff's demand shall be levied on such homestead so long as it shall continue a homestead except on the written demand of the plaintiff accompanied by an offer in writing to purchase the same for an amount exceeding $5,000 (or if a husband and wife have both claimed the exemption to which each is entitled, $10,000), which offer must state the amount and, at the election of the defendant, shall be binding on the plaintiff.

(c) When a sale is made under subsection (b) of this section and any defendant dies before receiving their $5,000 standing in lieu of the homestead, the same shall be paid to his or her personal representative, who shall receive and hold it subject to the homestead rights of the defendant's surviving spouse and minor child or children, or either, if there be such; but, if there be none such, the personal representative shall first apply the same to the payment of the demand for the enforcement of which the process issued, and the balance he shall administer as personal assets of the estate.

(Code 1876, §2832; Code 1886, §§2534-2536; Code 1896, §§2060-2062; Code 1907, §§4187-4189; Code 1923, §§7909-7911; Code 1940, T. 7, §§652-654; Acts 1980, No. 80-569, p. 879, §5.)