USA > Alabama > Hand-book of Alabama. A complete index to the state, with map > Part 13
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COMMERCIAL LAW ..
other act impairing his existing rights before sharing therein.
Every deed of gift, conveyance. transfer or assignment, verbal or written, of personal property, made in trust for the use of the person making the same, is void against his ered- itors, existing or subsequent.
THE LAW OF DEEDS AND MORTGAGES.
In this State, a deed or mortgage of land can be made only by a person who is twenty-one years of age, and not under a legal incapacity ; and it must be written or printed, or partly written and partly printed, on parchment or paper, and signed at the foot by the contracting party, or his agent having writ- ten authority. If he is not able to sign his name, then his « name must be written for him, with the words, " his mark," written against the same, or over it.
· An instrument so made, to be valid at all as a deed or mortgage of land, must be attested by one witness, or, where the party cannot write, by two witnesses, who are able to write, and who must write their names as witnesses ; or the instrument must be acknowledged before some proper officer, in the manner prescribed by law. No witness is necessary when the instrument is properly acknowledged .*
A deed or mortgage of land witnessed only, is sufficient, without acknowledgment or probate, as against the grantor and all persons who are not purchasers for value, without notice ; and it may also be admitted to record, and, when recorded, operates as notice. But to make the instrument self- proving, and provable by a transcript when it is lost or destroyed or out of the power of the party to produce, it must be acknowledged or proved in accordance with law, and recorded within twelve months from its date; and to have the benefit of these privileges, if the instrument has been admitted to record on proof, it must be attested by two wit- nesses.
. Acknowledgment dispenses with the necessity of witnesses, even though the grantor signs by mark only.
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HAND-BOOK OF ALABAMA.
Conveyances by married women of lands or stocks must be attested by two witnesses or acknowledged.
A mortgage of personal property is valid if made in writ- ing and subscribed by the mortgagor, even if without witnesses or acknowledgment; and it may be admitted to record, and will operate as notice. But to make it self-proving and prov- able by a transcript, as in case of a mortgage of land, it must be acknowledged, or witnessed and proved, and recorded within twelve months from its date, the same as if it was a - mortgage of land.
A crop-grower may mortgage his crop before it is planted, and such mortgage conveys the legal title to the crop ; but no such mortgage is valid to convey the legal title if executed prior to January 1 of the year in which the crop is planted.
- Powers of attorney, or other instruments conferring au- thority to convey property, may be proved or acknowledged in the same manner, and are received as evidence to the same extent as conveyances.
A deed or mortgage of land must be recorded in the office of the judge of probate of the county in which the land lies.
A mortgage of personal property must be recorded m the . office of such judge in' the county in which the mortgagor resides ; and if before the lien is satisfied the property is removed to another county, the mortgage must be again recorded, within six months from such removal, in the county to which it is removed. The instrument operates as a record from the day of its delivery to the judge, and a receipt for it may be required.
A mortgage of land, to secure a debt created at its date, is void as to purchasers for value, mortgagees and judgment creditors, without notice, unless recorded within thirty days from its date ; and a mortgage to secure any other debt is void as against such persons, unless it has been recorded before the accrual of the right of any such person.
A mortgage of personal property is inoperative against purchasers and creditors without notice, until recorded, unless the property is mortgaged when brought into this State, in which ease four months are allowed for recording : and if such property is removed to a different county from that in which the grantor resides, the mortgage must be recorded in such
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COMMERCIAL LAWS.
other county within six months from such removal, to have effect against such persons.
Personal property conveyed in consideration of marriage, when the possession remains with the husband, or husband and wife, must be taken as the property of the husband in favor of purchasers without notice and creditors, unless the conveyance is recorded in the county of the husband's resi- dence within twelve months after such possession commenced in this State; and if the husband removes to another county, within four months after such removal.
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- A loan of personal property, not in writing, vests an abso- lute estate in the person in possession, as to purchasers and creditors of such person, after three years, unless within that time action be commenced for the recovery of the property.
. Parol gifts of personal property are inoperative until the custody, control, management and use of the property pass from the donor to the donee, and is possessed by such donee or his agent : when the donee is a minor living with his parents, or either of them, the possession of the father, or parent with whom he is living, is the possession of the child.
All loans in writing, wills, or conveyanees creating estates in personal property, on condition, in reversion, or remainder, or in which the use is separated from the right, other than the conveyances above specified, and under which possession is suffered to remain for three years with the party entitled to the estate or use, vests an absolute estate in the person so having possession, as to creditors and purchasers of such per- son, unless such loan, will or conveyance is recorded within such time in the county where such property is.
Whenever any person, having an estate for life or years in personal property, removes to this State with such property, the conveyance creating such estate must be recorded in the county to which it is brought, within twelve months there- after; and if such property is removed to another county, then in such county, within four months after its removal thereto ; or such property must be taken to vest absolutely in such per- son, as to purchasers and creditors without notice.
A seal is not necessary to convey the legal title to land, if such was the intention of the grantor from the whole instru- ment.
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HAND-BOOK OF ALABAMA.
Conveyances of land are construed as conveyances of the fee, unless the contrary clearly appears.
Fees tail are made fees simple.
Contingent remainders operate as executory devises.
The rule in Shelley's case is abolished.
Livery of seisin and attornment of tenant are dispensed with.
. No survivorship between joint tenants.
No leasehold estate can be created for a longer term than twenty years.
Warranty by tenant for life is void as against the remain- derman or reversioner, and he cannot defeat the estate of such.
In all conveyances of estates in fee, the words " grant," " Largain," " sell," or either of them, unless it otherwise clearly appears from the conveyance, operate as a covenant of war- ranty that the grantor was seised of an indefeasible estate in fee simple, free from encumbrances done or suffered by the grantor, except rents and services reserved, and also for quiet enjoyment against the grantor, his heirs and assigns.
Lands may be conveyed to the wife and children, or chil- dren only, severally, successively and jointly, and to the heirs of the body of the survivor, if they come of age; and in default thereof, over; but conveyances to other than the wife and children, or children only, cannot extend beyond three lives in being at the date of the conveyance, and ten years thereafter.
Trusts for the purpose of accumulation only can have no effect for a longer term than ten years, unless when for the benefit of a minor in being at the date of the conveyance, or, if by will, at the death of the testator; in which case the trust may extend to the termination of such minority.
A power to sell in a mortgage of land is part of the security, and may be executed by the assignee or transferree of the mortgage.
. Every trust concerning land must be in writing and signed by the party creating the same, or by his agent having written authority, and must be recorded in the county where the land lies, to operate as notice.
All powers to dispose of lands must be executed as convey- ances : if the power is confined to a disposition by will, the execution must be by will.
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COMMERCIAL LAWS.
. The payment of a mortgage debt, whether the mortgage is, of real or personal property, divests the title passing by the mortgage.
The holder of a mortgage, who has received partial pay- ment, if the mortgage is of record, must, on the written request of the mortgagor, or of a judgment creditor, or other creditor of the mortgagor having a lien or claim on the prop- erty mortgaged, or of a purchaser from the mortgagor, enter on the margin of the record of the mortgage, the date and amount of such partial payment, and failing for thirty days after such request to make such entry, he forfeits to the party two hundred dollars. If the mortgage has been fully satisfied, the holder must, on a like request, enter the faet on the record, and failing for three months after request to make such · entry, he forfeits to the party making the request two hun- dred dollars, unless there is a suit pending in which the fact of satisfaction is contested. Such entry of full satisfaction operates a release of the mortgage, and is a bar to all suits thereon at law or in equity.
Redemption of Land .- Land sold under execution or de- cree, or under any deed of trust or mortgage, may be redeemed by the debtor within two years on his paying or tendering to the purchaser the purchase money, with ten per cent. per an- num thereon, and all other lawful charges ; provided, posses- sion has been delivered to the purchaser, within ten days after the sale, by the debtor, if in his possession, on demand of the purchaser, or his vendee. And if restitution of possession be refused, it may be recovered in an action of unlawful detainer.
A judgment creditor, who, in good faith, and otherwise than by confession, had obtained judgment before the sale, or within two years thereafter, may likewise redeem by paying or tendering to the purchaser the purchase money and ten per cent. per annum thereon, and all lawful charges ; and also crediting the debtor on the judgment with a sum not less than ten per cent. of the amount of the purchase money. But if the purchaser agrees to credit, and does credit the debtor, upon his judgment, with a like amount, he may retain the land, unless the creditor further offers to credit the debtor, with an addi- tional sum, not less than ten per cent. on the original purchase money, when, unless the purchaser meets this further offer the creditor is entitled to the land.
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HAND-BOOK OF ALABAMA.
One creditor may in like manner, within two years from the sale, redeem from another creditor; and in that case, the creditor offering to redeem must pay or tender to the creditor in possession the purchase money and ten per cent. per annum thereon, and must offer to credit the debtor as provided in the preceding paragraph ; and a creditor has also the right to re- cover possession in an action of unlawful detainer. Any per- son offering to redeem, must pay to the person in possession the value of all permanent improvements made by him after he acquired title.
THE LAW OF DOWER.
The widow is entitled to dower in the following lands of her husband :*
Lands of which he was seised in fee during the marriage. Lands of which another was seised in fee to his use.
Lands to which, at the time of his death he had a perfect equity, having paid all the purchase money.
If the husband's estate is solvent, and he leaves no lineal descendants, she is entitled to be endowed of one-half of such lands ; if he leaves no lineal descendants, and his estate is in- solvent, to one-third of such lands ; if he leaves lineal descend- ants, to one-third of such lands whether his estate is solvent or insolvent.
A wife, if of the age of eighteen years, can relinquish dower by joining with her husband in the conveyance or by joining him in a power of attorney authorizing a conveyance or subsequent to the husband's conveyance, by a separate instru- ment by her ; and in either case her signature must be attested by two witnesses who can write, or duly acknowledged by her.
A wife joining in her husband's conveyance, is not bound individually or as to her separate estate, by his covenant of warranty ; and such act has the effect only of relinquishing her dower unless she specially covenants to bind her separate estate.
The widow may retain possession of the dwelling house, where her husband most usually resided next before his death,
* Dower is an estate for the life of the widow.
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COMMERCIAL LAWS.
with the offices and buildings appurtenant thereto, and the plantation connected therewith, until her dower is assigned her, free of rent ; and when the estate of the husband is sol- vent, and the heirs will not be prejudiced, the dwelling house may be assigned as dower, in lieu of dower in the land.
If the wife has a separate estate, and such estate, exclusive of the rents, income and profits, is equal to or greater in value than her dower interest and distributive share in her hus- - band's estate, estimating her dower interest in his lands at seven years rent of the dower interest, she is not entitled to dower in or distribution of her husband's estate.
If her separate estate be less in value than her dower in- terest and distributive share in her husband's estate, then so much is allowed her as with her separate estate, would be equal to her dower and distributive share, if she had no sep- arate estate.
Proceedings or suits for dower, when the rights of an alienee of the husband, or any one claiming under such alienee " are involved, are barred, unless commenced within three years after the death of the husband.
THE WIFE'S SEPARATE ESTATE.
All property of the wife, held by her previous to the mar- riage, or to which she may become entitled after the marriage, in any manner, is the separate property of the wife, and is not subject to the liabilities of her husband. But property con- veyed to an active trustee for the wife's benefit, is not her sepa- rate property within the meaning of this article, and is not subject to the provisions of the same.
The earnings of the wife are her separate property; but she is not entitled to compensation for services rendered to or for her husband, or to or for the family.
All damages which the wife may be entitled to recover for injury to her person, or reputation, are her separate property.
The husband is not liable for the debts or engagements of the wife, contracted or entered into before marriage, or for torts committed by her before marriage; but therefor she remains liable and suable as if she were sole.
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IIAND-BOOK OF ALABAMA.
The husband is not liable for the debts or engagements of the wife, contracted or entered into after marriage, or for her torts in the commission of which he does not participate ; but the wife is liable for such debts or engagements entered into with the consent of her husband, in writing, or for her torts, and is suable therefor as if she were sole.
The wife has full legal capacity to contract in writing as if she were sole, with the written assent of her husband.
The wife must sue alone, at law or in equity, upon all con- tracts made by or with her, or for the recovery of her separate property, or for injuries to such property, or for its rents, income or profits, or for all injuries to her person or property ; and upon all contracts made by her, or engagements into which she enters, and for all torts committed by her, she must be sued as if she were sole.
If the husband be non compos mentis, or has abandoned his wife, or is a non-resident of this State, or is imprisoned under a conviction for crime for a period exceeding two years, the wife may alienate her lands as if she were sole; but otherwise the husband must give his assent by joining in the con- veyance.
The personal property of the wife may be disposed of by the husband and wife, by parol or otherwise, and if the hus- band is living apart from the wife, without fault upon her part, or if he be of unsound mind, the wife may dispose of her personal property as if she were sole.
The husband and wife may contract with each other, but contracts between them are subject to the rules of law as to contracts by and between persons standing in confidential relations ; and the wife cannot, directly or indirectly, become the surety for the husband.
The wife, may, with the written consent of the husband, filed and recorded in the office of the judge of probate, of the county of their residence, and of the county in which the busi- ness is carried on, pursue any lawful trade or business as if she were sole ; and the consent of the husband is not neces- sary, if he is of unsound mind, or has abandoned his wife, or is a non-resident of the State, or is imprisoned under convic- tion for crime.
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COMMERCIAL LAWS.
A married woman may dispose of her separate estate by will .* ,
On the death of a married woman, intestate, the husband is entitled to one-half of the personalty of her separate estate absolutely, and to the use of the realty during his life, unless a chancery court has divested him of all control over it, in the nfode and for the causes provided by the Code.
If the separate estate of a widow, exclusive of the rents, - income and profits, equals or exceeds in value her dower inter- est and distributive share in her husband's estate, estimating her dower interest at seven years' rent, she is not entitled to dower or distribution of her husband's estate. But if it be less in value, she is allowed so much as, with her separate estate, would be equal to her dower and distributive share in such estate, as if she had no separate estate.
The wife, in her own name, or in the name of a trustee, may insure the life of her husband for the benefit of herself, or for the benefit of herself and any child or children of the - marriage. Or the husband or father may insure his life for the benefit of his wife, or for the benefit of his wife and chil- dren, or for the benefit of his minor child or children, and such insurance is exempt from liability for his debts or engage- ments, or for his torts, or any penalty or damages recoverable of him, if the annual premiums thereon do not exceed five hundred dollars; or if such premiums exceed. five hundred dollars, then to the extent of the insurance which an annual premium of five hundred dollars would purchase.
PROPERTY RIGHTS OF ALIENS.
An alien, resident or non-resident, of this State, has all the rights of a native citizen, so far as concerns the acqui- sition, holding and disposing of property, real and personal, in this State, whether by purchase, descent or devise.
* But she must be of sound mind, and twenty-one years of age if it is a will of realty, and eighteen years of age if of personalty.
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HAND-BOOK OF ALABAMA.
GENERAL ASSIGNMENTS-RELEASES-COMPROMISES
Every general assignment, by which a preference or pri- ority of payment is given to one or more creditors, inures to the benefit of all the creditors equally .*
All receipts, releases and discharges in writing, whether of a debt of record, or a contract under seal, or otherwise, have effect according to the intention of the parties.
. All settlements in writing, made in good faith, for the composition of debts, operate according to the intention of the parties, though no release under seal is given and no new con- sideration has passed.
ARBITRATION.
Courts are required to encourage the settlement of suits pending before them by references to arbitrators, chosen by the parties. When no suit is pending, the parties to any con- troversy may refer the matter to arbitrators, chosen by them- selves, and their award, made pursuant to law, has the force of a judgment.
PROPERTY EXEMPT. ¡
The following property is exempt in this State from levy and sale for the payment of debts : #
In Favor of Owner .- During his life and occupancy, s
* A general assignment is one which embraces all, or substantially all, of the debtor's property.
t For the constitutional provisions on the subject of property exemptions, see Constitution, Art. X. ante.
A judgment for a tort is not a debt, and the right of exemption cannot be as- serted against it : nor is a judgment for a statutory penalty a debt against which the right of exemption may be claimed. The law of force at the creation of a debt gov- erns as to exemptions.
§ Actual occupancy is an indispensable element of every valid claim of home- stead; but temporary absence with intention to return will not forfeit. And when a declaration of claim to a homestead exemption has been filed in the other of the judge of probate, leaving the homestead temporarily, or leasing it, will not operate an abandonment of it. A voluntary sale is a waiver of the right of homestead ex- emption ; the right does not follow and attach to the purchase money.
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COMMERCIAL LAW'S.
the homestead * of every resident i of this State, with the im- provements and appurtenances, not exceeding in value two thousand dollars, and in area one hundred and sixty acres.#
If the homestead exceeds two thousand dollars in value, or one hundred and sixty acres in area, commissioners appointed by the sheriff, under an order of the court in which the con- test is pending, must, if practicable, allot the homestead by metes and bounds, and if this is impracticable the sheriff must - sell the homestead and pay over to the defendant two thous- and dollars of the purchase money.
The personal property; of such resident to the value of one thousand dollars, to be selected by him. Il
All necessary and proper wearing apparel for himself and family.
All family portraits or pictures.
All books used in the family.
Family burial lots and church pews.
From Garnishment, Etc .- The wages or other compen- sation of laborers or employes, residents of this State, for per- sonal services, to the amount of twenty-five dollars per month.
In Favor of Owner's Widow and Minor Children .- The homestead, as above, of any resident of the State, leaving sur- viving him a widow and minor child or children, or either, is exempt from administration and the payment of debts, in fa- vor of such during the life of the widow, or the minority of the child or children, whichever may last terminate, and the same may be retained by them, until it is ascertained whether the estate is solvent or insolvent, and if the estate is insolvent it shall vest in them absolutely.[ *
* It must he a homestead, used and occupied as a home, not ordinary real estate, without regard to its use. Leased premises, or houses ereeted on leased premises. which the lessee has the right of removing on the termination of the lease, are the subjects of homestead.
t Only residents of the State are entitled to homestead.
# The Legislature cannot reduce the constitutional exemption, but may increase or enlarge it.
§ " Personal property," as here used, includes money, and choses in action, as well as any other species of personal property.
! The only limitation on the right of selection is that the property selected must not exceed in value one thousand dollars.
" Having a separate estate does not lessen the widow's exemption rights and her dower right is no bar.
** The widow and minors must be bona fide residents of this State, at the time of the death of the husband or father, to be entitled to these exemptions.
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HAND-BOOK OF ALABAMA.
If the decedent, at the time of his death, has no homestead exempt, his widow and minor child or children, or either, are entitled to the equivalent of the homestead exemption out of any other real estate owned by him.
All the wearing apparel of the decedent and of the widow and minor children.
All yarn and cloth on hand intended for family use.
All books kept for use in the family. All family portraits and pictures.
All grain, stores and groceries on hand necessary for the support of the family for twelve months after the decedent's death.
All bedding and household and kitchen furniture necessary for the use and comfort of the family. All the foregoing per- sonal property to be selected by the widow, or, if there is no widow, or she fails to act, by the guardian of the minor child or children.
Personal property of the decedent to the value of one thous- and dollars, to be selected and set apart for the widow and minor children.
The homestead exemption in favor of the widow and minor children is not forfeited by a removal, so long as such widow and children, continue to reside permanently in this State, and their temporary absence from the State does not defeat the right.
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