USA > Alabama > Hand-book of Alabama. A complete index to the state, with map > Part 14
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Alienation of the Homestead .- No mortgage, deed, or 'other conveyance of the homestead by a married man is valid without the voluntary signatur , and assent of the wife, which must be shown by her examination, separate and apart from him, before an officer authorized by law to take acknowledg- ments of deeds, and the certificate of such officer upon, or at- tached to such mortgage, deed or other conveyance.
Liens on the Homestead. - The exemption laws do not prevent any lien attaching to the homestead in favor of any laborer, mechanic or material man for work and labor done, or for materials furnished, or in favor of any vendor for unpaid purchase money, nor affect any deed, mortgage or lien on such homestead, lawfully executed or created.
. Waiver of Exemptions .- Any person by an instrument in writing may waive his right to an exemption in any prop- erty.
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As to personal property the waiver may be made by a sep- arate instrument in writing, subscribed by the party, or it may be included in any bond, bill of exchange, promissory note, or other written contract.
As to the homestead, the waiver must be by a separate in- strument in writing, subscribed by the party and attested by one witness ; and, if the party is a married man, such waiver is not valid without the voluntary signature and assent of the - wife, shown and acknowledged as required in cases of the con- veyance of the homestead.
THE LAW OF LIENS.
Lien of Judgment .- A judgment or decree of any court of record of this State, for the payment of money, filed and reg- istered in the probate office of any county in the manner pre- seribed by law, is a lien upon all the property of the defend- · ant, subject to levy and sale, in such county, from the date of such registration, and the lien continues for ten years from such date, and is notice to all persons.
If the registration has been made within a year from the time the judgment or decree was rendered, execution thereon may be issued at any time within ten years from the date of the rendition of the judgment or decree, and that whether execution has been previously issued or not on the same.
Lien of Execution .-- A writ of fieri facias is a lien upon the property of the defendant, subject to levy and sale, only from the time that it is received by the officer authorized to execute it, and only in the county ; and the lien continues so long as the writ is regularly sued out, without the lapse of an entire term ; and the plaintiff may sue out branch and alias writs.
Executions issued by justices of the peace are liens, on the property on which they are levied, from the time of the levy only.
Lien of Attachment, Etc .- Attachments and garnish- ments create liens from the time of the levy of the writ.
Lien of Mechanics, Etc .- Every person or corporation who does work upon or furnishes material or machinery of
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any kind, for any building, improvement or utility on land, or for altering, repairing or beautifying the same, under a con- tract with the owner, or his agent, architect, trustee, contrac- tor or sub-contractor, has a lien therefor on such building, im- provement or utility, and on the land on which the same is situated, to the extent in ownership of all the interest of such owner therein, and in area of the entire lot of land, and in ad- dition thereto, has a lien for all costs and for an attorney's fee, in the discretion of the court, not to exceed twenty-five dollars.
Lien of Blacksmiths .- Every blacksmith, wood work- man, or other mechanic, has a lien, for his labor and material, on every article made or repaired by him, in the hands of the party for whom made or repaired, or to whom sold, and in the hands of a purchaser with notice, enforceable by attachment, within six months after the demand becomes due.
Lien on Water Craft .- A lien, enforceable within six months after the demand becomes due, exists on every water craft built, repaired, fitted, furnished, supplied or victualed, within this State, for work and material done or supplied by any person within this State, about the same, and for the wages of the master, laborers, stevedores and ship keeper in preference to other liens for debts owing by the owners.
LIENS IN FAVOR OF LANDLORDS .*
For Rent of Farm Lands and Advances .- A landlord has a lien enforceable by attachment, which has preference over all other liens, on the erop grown on rented lands for rent for the current year, and for advances of money or other thing of value, either by him directly, or by another at his instance or request, or for which he became legally liable at or before the time such advances were made, for the sustenance or well being of the tenant or his family, or for preparing the ground for cultivation, or cultivating, gathering, saving, handling or preparing the crop for market ; and, also, on all articles ad-
* The law of agricultural liens is reciprocal, and where the laborer works for a part of the crop, he has a lien upon the crop for his part, enforceable in the same manner and under the same conditions as the lien in favor of the lan lord.
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vanced, and on all property purchased with money advanced, or · obtained by barter in exchange for articles advanced, for the aggregate price or value of such articles and property ; and, un- less otherwise stipulated, such rent and advances become due and payable on the 25th day of December of the year in which the crop is grown.
When the tenant fails to pay any part of such rent or ad- vances, and continues his tenancy under the same landlord, on the same or other lands, the balance due is treated as advances for the next succeeding year, for the payment of which the original lien continues, and a lien also attaches to the crop of such succeeding year.
The landlord's claim for rent and advances, or for either, is assignable by him so as to vest in the assignee all the land- lord's rights and remedies.
For Rent of Storehouses and Other Buildings .- The landlord of any storehouse, dwelling house, or other building, has a lien, enforceable by attachment, on the goods, furniture and effects of the tenant, for his rent, which is superior to all other liens, except those for taxes ; and this lien is assignable, so as to vest in the assignee all the landlord's rights and remedies.
Lien of Persons Farming on Shares .- Persons farming on shares, or raising crops by joint contributions, have each a lien, enforceable by attachment, upon the interest of the other in the crop for any balance due for provisions, supplies, teams, materials, labor, services and money, or;either, furnished to aid in cultivating and gathering such crop, under contract, or fur- nished when the interest of such crop requires it, in case of a failure of either to contribute the amount and means as agreed upon.
Lien of Agricultural Laborers and Superintendents. -Agricultural laborers and superintendents have a lien, en- forceable by attachment, within six months after the work is done, upon the crop of the current year, for labor and services rendered by them in the cultivation of such crop.
Lien of Railroad Employees .-- Laborers and employees of each railroad company operated in this State, except the officers, have a lien, enforceable by attachment within six months, for all debts due them for work and labor donc, which
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covers all the property, rights, effects and credits of every de- scription belonging to such company and situate in this State.
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Lien of Livery Stable Keepers .- The keeper, owner or proprietor of a livery stable has a lien on all stock for the payment of his charges for keeping and feeding the same, and he has a right to retain the stock to that end, and he has power of sale to satisfy the lien, on his complying with the statutory regulations on the subject.
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LAW OF DESCENT, DISTRIBUTION AND WILLS.
Descent of Real Estate .- The real estate of persons dying intestate as to such estate descends, subject to the payment of debts, charges against the estate and the widow's dower, as follows :
1. To the children of the intestate, or their descendants, in equal parts.
2. If there are no children, or their descendants, then to the brothers and sisters of the intestate, or their descendants, in equal parts.
3. If there are no children, or their descendants, no brother or sisters, or their descendants, then to the father, if living; if not, to the mother.
4. If there are no children, or their descendants, no brother or sister, or their descendants, no father or mother, then to the next of kin to the intestate, in equal degree, in equal parts.
5. If there are no children, or their descendants, no brother or sister, or their descendants, no father or mother, or next of ·kin capable of inheriting, the whole estate goes to the husband or wife of the intestate, if capable of taking; and if there is no husband or wife, it escheats to the State. *
* By act approved January 30, 1891, the rules of descent and distribution in this State are changed in certain cases. This act provides as follows :
"SECTION 1. That hereafter in this State, the real and personal property of all persons dying (in the State ?? ), who leave no husband, or widow, or children, or descendants of children, but who leave surviving a parent or parents, shall descend, subject to the payment of debts and charges against the estate : first, to the parents. in equal portions ; and in case but one parent is surviving, then he or she shall be entitled to one-half of such estate, and the other half to the brothers and sisters of the deceased, or their descendants, as now provided by law; and if there be no brothers and sisters and their descendants, then the whole estate shall go to the sur- . viving parent,"
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Distribution of Personal Estate .- The personal estate of persons dying intestate as to such estate, after the payment of debts and charges against the estate, is to be distributed in the same manner as is real estate, and according to the same rules, except that the widow, if there are no children, is enti- tled to all the personal estate, or, if but one child, she is entitled to one-half; if more than one and not more than four children, to a child's part; and if more than four chil- dren, one-fifth .*
The lineal descendants, in equal degree, of a deceased child, - brother or sister, take per stirpes, but there is no representa- tion among collaterals, except with the descendants of brothers and sisters.
The degree of kindred is computed according to the rules of the civil law.
No distinction is made between the whole and the half blood in the same degree, unless the inheritance came by descent, devise or gift from an ancestor; in which case all those who are not of the blood of the ancestor are excluded as against those of the same degree.
Posthumous children of the intestate inherit as if born in his life time ; but no right of inheritance accrues to any other person than the children of the intestate, unless born at his death.
Illegitimate children inherit from the mother, as if born in lawful wedlock; and the mother or kindred of an illegitimate child, on the part of the mother, are, in default of children of such illegitimate child, or their descendants, entitled to. inherit the estate.
Heirs take as tenants in common.
THE LAW OF WILLS.
Who May Make a Will .- Every person of sound mind and over the age of eighteen years may make a will of personal property ; but to make a will of land, the party must be of sound mind and twenty-one years of age.
: See note on page 130.
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A married woman, if of sound mind and the requisite age, may make a will of her separate estate; and marriage operates a revocation of the will of an unmarried woman.
The Widow's Dissent .- The widow may, in all cases, within eighteen months from the probate of the will, dissent from the will of her deceased husband, and, in lieu of the pro- vision made for her, elaim her dower in the lands, and such portion of the personal estate as she would have been entitled to in case of intestacy.
Execution of Wills .- Except in the cases mentioned in the next succeeding paragraph, a will, whether of real or per- sonal property, to be valid, must be in writing, signed by the testator, or some person in his presence and by his direction, and attested by at least two witnesses, who must subscribe their names thereto, in the presence of the testator.
Nuncupative Wills .- Soldiers in actual service, and sea- men at sea, may, by will, dispose of personal property, as they - might have done before the adoption of the Code (of Alabama); and an unwritten will of personal property is valid if the property bequeathed does not exceed in value five hundred dol- lars, and the will is made during the last sickness of the deceased, and at his dwelling, or where he had resided ten days or more, except when he was taken sick from home and died before his return ; and it must be proved that the testa- tor, at the time of making the will, called upon the persons present, or some of them, to take notice, or bear witness, or to that effect, that such was his will.
THE LAW OF ESCHEATS.
The property of all persons who die without devising or bequeathing the same, and having no lawful heirs, or husband or wife, capable of taking, or where the devisees or legatees are incapable of taking the same, and there are no lawful heirs, escheats to the State .*
. Escheats are, by law, applied to the support of the public schools of the State.
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LIMITED PARTNERSHIPS.
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The Code of Alabama prescribes a mode in which limited partnerships for the transaction of any lawful business in this State, other than banking or insurance, may be formed of one or more general partners, with liability as such, and one or more special partners with liability limited to the capital contributed by them.
WAREHOUSEMEN AND COMMON CARRIERS.
By the Code of Alabama, warehousemen and common carriers must give a receipt or bill of lading for goods or other property received by them for safe-keeping or carriage, stating the condition of the goods or property, and if it be cotton in bales, the condition of the bagging and ropes or ties and of the . cotton, whether dry, damp, wet or very wet, and must deliver such goods or other property in like condition as when re- ceived by them.
If such receipt or bill of lading is not given, the goods or other property must be taken to have been received in good condition, and the warehouseman or carrier is held to a deliv- ery in like condition, and is liable to the owner for all dam- ages sustained by him in consequence.
Warehousemen, carriers, and others receiving goods or other property for storage, carriage, or forwarding, are pro- hibited from giving any receipt or bill of lading for such, unless the property has been actually delivered to them or placed under their control ; and a second receipt or bill of lading must not be given, the original being outstanding, with- out writing across its face the word " duplicate."
A warehouse receipt not having the words " not negotia- ble " plainly written or stamped thereon, is transferrable by endorsement, so as to vest in the transferree the legal owner- ship in the property so far as to give validity to any. pledge, lien or transfer created by him : but valid prior liens on the property are not affected by such transfer. 11
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PRIVATE CORPORATIONS .*
The Code of Alabama provides, by general laws, a short, simple and inexpensive mode in which private corporations for business and other purposes, may be formed -- such as banking corporations ; life, accident, fire and marine insurance corporations ; mining, quarrying and manufacturing corpora- tions ; railroad corporations ; building and loan associations ; street railway companies ; macadamized, turnpike and other toll road companies; telegraph companies ; navigation com- panies, and all other companies for the carrying on of any industrial business. Provision is made also for the incorpora- " tion of churches or religious societies, educational and benevo- lent societies and cemeteries, social and literary societies and mutual aid associations.
Except in the cases of railroad corporations and navigation companies, when the declaration is required to be filed in the office of the Secretary of State, the mode of incorporation is by filing a declaration of incorporation in the probate court of the county, and the issue, by the judge of such court, of a cer- tificate of incorporation.
Corporate Shares .- By the law of Alabama, corporate shares are declared to be personal property, transferable on the books of the corporation.
Every corporation must require the transfer of its stock to be made on its books, and persons holding stock not so transferred, or holding stock under a lien, must have the trans- fer or lien made or registered on the books of the corporation, and failing to do so within fifteen days, the transfer or lien is void as to bona fide creditors or subsequent purchasers with- out notice.
Corporate shares are subject to levy and sale under legal process, as other personal property.
A corporation has a lien on the shares of a stockholder for his indebtedness toit, incurred before notice of transfer or of a levy on such shares, and may sell the same for the satisfac- tion of such indebtedness, in the mode prescribed by law.
* For the Constitutional provisions on the subject of corporations, see Constitu ii r, Art. XIV, onte.
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. Provision is made by law for the increase of the capital stock and bonded indebtedness of corporations, and on such increase, shareholders have the preference of taking the same, in proportion to their original stock. And corporations, or- ganized under the general laws of the State, may issue pre- ferred stock by a vote of two-thirds in value of the stock, at a stockholders' meeting for that purpose, called in accordance with law, and the stockholders are entitled to the preference of taking such preferred stock in proportion to their common stock.
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Stockholders, at reasonable and proper times, have the right to examine the corporate books, records and papers.
Stockholders' Meetings .- The stockholders of every cor- poration must meet annually, at a time and place, and upon notice to be prescribed by the by-laws ; and the board of di- rectors, or other managers, may call special meetings; and at such meetings each stockholder is entitled to one vote for each share of stock owned by him.
Actions Against Corporations .- A corporation may be sued in any county in the State, in which it does business ; and foreign corporations, before engaging in business in this State, must file in the office of the Secretary of State, a written in- strument, under the corporate seal, signed by the president and secretary, designating at least one known place of business in this State and an authorized agent residing there at. If it be an insurance corporation, the instrument must be filed in the office of the State Auditor.
Forfeiture of Charter .- Non-user for five years for- feits the franchise, and the right to organize is forfeited after two years from the filing of the declaration of corporation unless otherwise provided.
CIVIL PROCEDURE.
Limitation of Actions .- Civil suits must be commenced, after the cause of action has accrued, within the periods fol- lowing :
Limitation of Twenty Years .- Within twenty years- -
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1. Actions at the suit of the State against a citizen thereof, for the recovery of real or personal property.
2. Actions by or for the use of any township, for the re- covery of sixteenth section or other school lands belonging to the township.
3. Actions upon a judgment or decree of any court of this state, of the United States, or of any State or Territory of the United States.
Limitation of Ten Years .- Within ten years-
1. Actions founded upon any contract or writing under seal.
2. Actions for the recovery of lands, tenements or heredita- ments, or the possession thereof, except as herein otherwise provided.
3. Motions and other actions against sheriffs, coroners, constables, and other public officers for non-feasance, misfea- sance or malfeasance in office.
Limitation of Six Years .- Within six years-
1. Actions for any trespass to person or liberty, such as false imprisonment or assault and battery.
2. Actions for any trespass to real or personal property.
3. Actions for the detention or conversion of personal property.
4. Actions founded upon a contract in writing not under seal.
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5. Actions for the recovery of money upon a loan, upon a stated or liquidated account, or for arrears of rent due upon a parol demise.
6. Actions for the use and occupation of land.
7. Motions and other actions against the sureties of any sheriff, coroner, constable, or any public officer, or actions against the sureties of executors, administrators or guardians, for any misfeasance or malfeasance whatever of their princi- pal; the time to be computed from the act done or omitted by their principal, which fixes the liability of the surety.
8. Motions and other actions against attorneys at law, for failure to pay over money of their clients, or for neglect or omission of duty.
9. Actions founded upon judgments obtained before jus- tices of the peace of this State.
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16. Actions founded upon any simple contract or specialty not herein specifically enumerated.
Limitation of Five Years .- Within five years, all ac- tions founded on equities of redemption, where lands have been sold under a decree of the court of chancery, existing in any person not a party to the proceedings, who claims under the mortgagor or grantor in the deed of trust.
Limitation of Four Years .- Within four years, all ac- tions or motions against any surety to any writ of error, appeal, replevy or forthcoming bond, executed in any cause in any of the courts of the United States, or of any other State or country except this State.
. Limitation of Three Years .-- Within three years, actions to recover money due by open or unliquidated account, the time to be computed from the date of the last item of the account, or from the time when, by contract or usage, the account is due.
Limitation of One Year .- Within one year-
1. Actions for malicious prosecutions.
2. Actions for criminal conversation, for seduction, or breach of marriage promise.
3. Actions qui tam, or for a penalty given by statute to the party aggrieved, unless the statute imposing it prescribes a different limitation.
4. Actions of libel or siander.
5. Actions for damages for wrongful aet or omission, causing personal injury to, or death of, a minor.
6. Actions for any injury to the person or rights of another, not arising from contract, and not herein specifically enumerated.
7. Actions by or for the use of wife or children for money lost at gaming.
8. Actions for penalties for injuries to trees or water craft. Limitation of Six Months .-
1. Actions before justices for damages for injuries to live stock by railroads.
2. Actions by loser for money lost at gaming.
3. Actions for enforcement of liens in favor of mechanics*
* The action to enforce a lien in favor of a mechanic or material man must be com- menced within six months after the filing of the lion, and the lien must be tiled within ninety days from the last day on which any labor was performed or material furnished, in the probate office of the county.
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and material men, blacksmiths and wood-workmen, or on ships, steamboats and other water craft, and liens in favor of agricultural superintendents and laborers and railroad em- ployees.
Claims Against Estates, When Barred. - All claims against the estate of a deceased person must be presented within eighteen months after the same have accrued, or within eighteen months after the grant of letters testamentary or of administration ; and if not presented within that time, they are forever barred. But minors and persons of unsound mind are allowed eighteen months after the removal of their re- spective disabilities, to present such claims.
The personal representative of a decedent is prohibited from paying a claim against the estate, barred in the life-time of the decedent.
The presentation of claims against an estate may be made either to the executor or administrator, or by filing the claim, or a statement thereof, in the office of the judge of probate in which letters were granted.
Claims against insolvent estates of deceased persons must . be filed in the office of the judge of probate, within nine months after the estate is declared insolvent, or after the claim accrues. But infants and persons of unsound mind are allowed nine months after the removal of their respective disabilities.
General Rules as to Limitation of Actions .- Absence from the State during the period within which suit might have been brought, is not to be computed as a portion of the time necessary to create the bar.
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