All persons of the age of 19 years and not under a legal incapacity may alien their lands and any interest therein, whether immediate or future, certain or contingent, by instrument in writing or by their last will, under the regulations prescribed by law.(Code 1852, §1265; Code 1867, §1534; Code 1876, §2144; Code 1886, §1788; Code 1896, §981; Code 1907, §3354; Code 1923, §6837; Code 1940, T. 47, §13.)Section 35-4-2 Section 35-4-2Estate taken as fee simple unless expressly limited.
Every estate in lands is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended.(Code 1852, §1299; Code 1867, §1569; Code 1876, §2178; Code 1886, §1824; Code 1896, §1020; Code 1907, §3396; Code 1923, §6900; Code 1940, T. 47, §14.)Section 35-4-3 Section 35-4-3Fee tail converted into fee simple.
Every estate in real or personal property in fee tail, now or hereafter created, becomes an estate in fee simple, and the person in whom such a conditional fee vests has the same power over the estate as in case of pure and absolute fees.(Code 1852, §1300; Code 1867, §1570; Code 1876, §2179; Code 1886, §1825; Code 1896, §1021; Code 1907, §3397; Code 1923, §6901; Code 1940, T. 47, §15.)Section 35-4-4 Section 35-4-4Rule against perpetuities.
The common-law rule against perpetuities as to land shall be in full force and effect in this state so that the rule against perpetuities applicable to personal property and to land shall be the same.(Acts 1931, No. 684, p. 816; Code 1940, T. 47, §16.)Section 35-4-5 Section 35-4-5Conveyance to avoid perpetuities.
Lands may be conveyed within the limits fixed by law, so as to avoid perpetuities, and subject to such other restrictions as are imposed by this Code for such terms as the owner thinks proper; and courts are enjoined to give effect in such cases to the intention and meaning of the parties.(Code 1852, §1308; Code 1867, §1578; Code 1876, §2187; Code 1886, §1833; Code 1896, §1029; Code 1907, §3416; Code 1923, §6921; Code 1940, T. 47, §17.)Section 35-4-6 Section 35-4-6Maximum term of leasehold estate; acknowledgment or approval and recordation of leases for more than 20 years.
No leasehold estate can be created for a longer term than 99 years. Leases for more than 20 years shall be void for the excess over said period unless the lease or a memorandum thereof is acknowledged or approved as required by law in conveyances of real estate and recorded within one year after execution in the office of the judge of probate in the county in which the property leased is situated.(Code 1852, §1311; Code 1867, §1581; Code 1876, §2190; Code 1886, §1836; Code 1896, §1032; Code 1907, §3418; Acts 1911, No. 41, p. 24; Code 1923, §6923; Code 1940, T. 47, §18; Acts 1989, No. 89-942, p. 1850, §2.)Section 35-4-7 Section 35-4-7Survivorship between joint tenants.
When one joint tenant dies before the severance, his interest does not survive to the other joint tenants but descends and vests as if his interest had been severed and ascertained; provided, that in the event it is stated in the instrument creating such tenancy that such tenancy is with right of survivorship or other words used therein showing such intention, then, upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument. This shall include those instruments of conveyance in which the grantor conveys to himself and one or more other persons and in which instruments it clearly appears that the intent is to create such a survivorship between joint tenants as is herein contemplated.(Code 1852, §1312; Code 1867, §1582; Code 1876, §2191; Code 1886, §1837; Code 1896, §1033; Code 1907, §3419; Code 1923, §6924; Code 1940, T. 47, §19; Acts 1945, No. 505, p. 730; Acts 1951, No. 885, p. 1526.)Section 35-4-8 Section 35-4-8Posthumous children included in 'heirs,' 'issue' or 'children.'
Where a future estate is limited to 'heirs,' 'issue' or 'children,' posthumous children are entitled to take the estate in the same manner as if born before the death of the parent. Any future estate depending upon the death of a person without heirs, issue or children is defeated by the birth of a posthumous child of such person capable of taking by descent.(Code 1852, §1303; Code 1867, §1573; Code 1876, §2182; Code 1886, §1828; Code 1896, §1024; Code 1907, §3402; Code 1923, §6906; Code 1940, T. 47, §20.)Section 35-4-9 Section 35-4-9Ownership of title instruments.
Instruments essential to the title of real property and which are not kept in a public office, as a record, pursuant to law, belong to the person in whom for the time being such title may be vested and pass with the title.(Code 1923, §6963; Code 1940, T. 47, §21.)Section 35-4-20 Section 35-4-20Conveyance required to be in writing; signature; attestation by witnesses.
Conveyances for the alienation of lands must be written or printed, or partly written and partly printed, on parchment or paper, and must be signed at their foot by the contracting party or his agent having a written authority; or, 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; the execution of such conveyance 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, if he can write his name but does not do so and his name is written for him by another, then the execution must be attested by two witnesses who can and do write their names.(Code 1852, §1266; Code 1867, §1535; Code 1876, §2145; Code 1886, §1789; Code 1896, §982; Code 1907, §3335; Code 1923, §6838; Code 1940, T. 47, §22.)Section 35-4-21 Section 35-4-21Seal unnecessary.
A seal is not necessary to convey the legal title to land to enable the grantee to bring a civil action. Any instrument in writing, signed by the grantor or his agent having a written authority, is effectual to transfer the legal title to the grantee, if such was the intention of the grantor, to be collected from the entire instrument.(Code 1852, §2198; Code 1867, §2599; Code 1876, §2948; Code 1886, §2694; Code 1896, §983; Code 1907, §3356; Code 1923, §6839; Code 1940, T. 47, §23.)Section 35-4-22 Section 35-4-22Effect of writings importing to be under seal.
All writings which import on their face to be under seal are to be taken as sealed instruments and have the same effect as if the seal of the parties was affixed thereto.(Code 1852, §1315; Code 1867, §1585; Code 1876, §2194; Code 1886, §1840; Code 1896, §1036; Code 1907, §3363; Code 1923, §6847; Code 1940, T. 47, §32.)Section 35-4-23 Section 35-4-23Acknowledgment - Operates as compliance with witness requirements.
The acknowledgment provided for in this article operates as a compliance with the requisitions of section 35-4-20 upon the subject of witnesses.(Code 1852, §1267; Code 1867, §1536; Code 1876, §2146; Code 1886, §1790; Code 1896, §984; Code 1907, §3357; Code 1923, §6840; Code 1940, T. 47, §24.)Section 35-4-24 Section 35-4-24Acknowledgment - Officers authorized to take in this state.
Acknowledgments and proofs of conveyances may be taken by the following officers within this state: Judges of the supreme court, the court of civil appeals, the court of criminal appeals, circuit courts and district courts, and the clerks of such courts; registers of the circuit court, judges of the court of probate, and notaries public.(Code 1852, §1276; Code 1867, §1545; Code 1876, §2155; Code 1886, §1799; Code 1896, §993; Code 1907, §3358; Code 1923, §6841; Code 1940, T. 47, §25.)Section 35-4-25 Section 35-4-25Acknowledgment - Officers holding stock in certain corporations.
An acknowledgment or proof of any deed, mortgage or other conveyance to or by a corporation, national banking association, building and loan association or savings and loan association at any time heretofore or hereafter taken by an officer authorized by law to take acknowledgments and proofs of conveyances and at that time owning or holding not more than one percent of the total issued and outstanding capital stock of such corporation, national banking association, building and loan association or savings and loan association, and not then holding any office in said corporation, national banking association or building and loan association shall have the same effect as if such officer did not hold or own any of such stock.(Acts 1931, No. 593, p. 675; Code 1940, T. 47, §26.)Section 35-4-26 Section 35-4-26Acknowledgment - Officers authorized to take outside Alabama; validity; certification.
(a) Acknowledgments, proofs of conveyances, and affidavits may be taken within the United States and beyond the State of Alabama, by judges and clerks of any federal court, judges and clerks of any state court of record in any state, notaries public, commissioners appointed by the Governor of this state, the commissioner of deeds for the state wherein the acknowledgment is taken, or by any commissioned officer of any of the Armed Forces of the United States. Beyond the limits of the United States, the acknowledgments, proofs, and affidavits may be taken by the judges of any court of record, mayor or chief magistrate of any city, town, borough, or county, by any diplomatic, consular, or commercial agent of the United States, notaries public, or by any commissioned officer of any of the Armed Forces of the United States.
(b) Notwithstanding any provision of this chapter, the acknowledgment of any instrument executed outside the State of Alabama which is in compliance with the manner and form prescribed by the laws of the place of its execution, is executed in a state, territory, or insular possession of the United States or the District of Columbia, and is verified by the official seal of the officer before whom it is acknowledged, shall have the same effect as an acknowledgment in the manner and form prescribed by the laws of this state for instruments executed within the state.
(c) All deeds, conveyances, deeds of trust, mortgages, mineral leases, marriage contracts, and other instruments in writing, affecting or purporting to affect title to any real estate or personal property situated in this state, which have been recorded or executed prior to August 1, 2004, and which may be defective or ineffectual because of the failure to have the form of acknowledgment as required by Section 35-4-29, shall be binding and effectual as though the instruments contained the required form of acknowledgment.
(d) In addition to the acknowledgment of instruments in the manner and form provided by this chapter, persons serving in or with the Armed Forces of the United States or their dependents may acknowledge the same wherever located before any commissioned officer of any of the Armed Forces of the United States. The instrument may not be rendered invalid by the failure to state therein the place of execution or acknowledgment, but shall include the state in which the acknowledgment occurred. No authentication of the certificate of acknowledgment of the officer shall be required, but the officer taking the acknowledgment shall endorse thereon or attach thereto a certificate substantially in the following form:
'On this ____ day of _________, _____, before me, ______________, the undersigned officer, personally appeared ___________ (Serial No. _________ ) known to me or satisfactorily proven to be (serving in or with the Armed Forces of the United States) (a dependent of ________________, Serial No. _________, a person serving in or with the Armed Forces of the United States) and to be the person whose name is subscribed to the within instrument, and acknowledgment before me on this day that, being informed of the contents of this instrument, he or she executed the same voluntarily on the day the same bears date. The undersigned does further certify that he or she is at the date of this certificate a commissioned officer of the rank stated below and is in the active service of the Armed Forces of the United States.
'Signature of Officer
'Rank and Serial No. of Officer and Command to which attached.'(Code 1852, §1277; Code 1867, §1546; Code 1876, §2156; Code 1886, §1800; Code 1896, §994; Code 1907, §3359; Code 1923, §6842; Code 1940, T. 47, §27; Acts 1943, No. 240, p. 195; Acts 1947, No. 47, p. 15; Act 2004-555, §1.)Section 35-4-27 Section 35-4-27Acknowledgment - Proof of official seal.
All deeds, powers of attorney and other instruments of conveyance, affidavits or contracts purporting to be acknowledged, proved or verified as prescribed by law, and which have been recorded or may hereafter be recorded in the office of the judge of probate of the proper county in this state, and transcripts thereof from such record shall be prima facie evidence that the seal of such officer acknowledging or attesting such instrument was his official seal and that it was affixed by him in his official capacity; and all such instruments and certified copies thereof shall have the same force and effect and shall be received in evidence in any court in this state without further proof of the due execution of such instrument or proof of the seal of any officer so certifying or attesting and that the same was affixed by him as his official seal, in his official capacity, whether he be an officer of this state or of any other state, territory or district of the United States.(Acts 1920, No. 82, p. 135; Code 1923, §6843; Code 1940, T. 47, §28.)Section 35-4-28 Section 35-4-28Acknowledgment - Powers of attorney, etc.
Powers of attorney or other instruments conferring authority to convey property or to enter satisfaction of mortgages or other liens may be proved or acknowledged and recorded in the same manner and must be received as evidence to the same extent as conveyances.(Code 1852, §1278; Code 1867, §1547; Code 1876, §2157; Code 1886, §1801; Code 1896, §995; Code 1907, §3360; Code 1923, §6844; Code 1940, T. 47, §29.)Section 35-4-29 Section 35-4-29Form of acknowledgment.
The following are substantially the forms of acknowledgment to be used in this state, on conveyances and instruments of every description admitted to record:
|ACKNOWLEDGMENT FOR INDIVIDUAL|
|The State of ________}|
|A. B. Judge, etc. (or as the case may be)|
|ACKNOWLEDGMENT FOR CORPORATION|
|The State of ________}|
|Given under my hand this the _____ day of _____, 19__|
|(Style of Officer)|
|ACKNOWLEDGMENT FOR AN OFFICIAL OR OTHER PERSON IN REPRESENTATIVE CAPACITY|
|The State of ________}|
|Given under my hand this the _____ day of _____, 19__|
|(Style of Officer)|
|ACKNOWLEDGMENT FOR CORPORATION, IN REPRESENTATIVE CAPACITY|
|The State of ________}|
|Given under my hand this the _____ day of _____, 19__|
|(Style of Officer)|
The form of a probate of a conveyance or other instrument is as follows:
|The State of ________}|
|A. B. Judge, etc. (or as the case may be).|
Livery of seisin is not necessary in any conveyance of lands, and the property and possession of the grantor pass as fully by his conveyance as if seisin had been formally delivered.(Code 1852, §1316; Code 1867, §1586; Code 1876, §2195; Code 1886, §1841; Code 1896, §1037; Code 1907, §3364; Code 1923, §6848; Code 1940, T. 47, §33.)Section 35-4-32 Section 35-4-32Attornment of tenant unnecessary.
Every conveyance of an estate in any hereditament, corporeal or incorporeal, is good and effectual without attornment of the tenant; but no tenant who has paid his rent without notice of such conveyance is liable therefor.(Code 1852, §1298; Code 1867, §1568; Code 1876, §2177; Code 1886, §1823; Code 1896, §1019; Code 1907, §3365; Code 1923, §6849; Code 1940, T. 47, §34.)Section 35-4-33 Section 35-4-33Judgment for specific performance.
A judgment for specific performance shall operate as a deed to convey land or other property without any conveyance being executed by the vendor. Such judgment, certified by the clerk or register, shall be recorded in the registry of deeds in the county where the land lies, and shall stand in the place of a deed. In any action in which the court orders the specific performance of a contract for the sale of real estate, when it appears from the evidence that the party in whose favor the judgment is made is entitled to the possession of the real estate as against the other party and that such other party is in person or by tenants in possession of such real estate, the court may, in such judgment of specific performance, order the issuance of a writ of possession as in ejectment cases.(Code 1907, §3366; Code 1923, §6850; Code 1940, T. 47, §35.)Section 35-4-34 Section 35-4-34Recitation of consideration unnecessary.
No deed or other conveyance creating or transferring any interest in land shall be invalid or ineffective because of the fact that it does not recite a good or valuable consideration or no such consideration exists or is given; provided that this section shall in no way affect any equitable rights or remedies of the parties to the deed or other conveyance.
A deed or other conveyance purporting to create or transfer any interest in land, executed prior to January 21, 1971, shall be valid and effective notwithstanding the fact that it does not recite a good or valuable consideration or no such consideration existed or was given; provided, that this section shall in no way affect any equitable rights or remedies of the parties to the deed or other conveyance.(Acts 1971, 3rd Ex. Sess., No. 170, p. 4420.)Section 35-4-50 Section 35-4-50Conveyances required to be recorded in office of probate judge.
Conveyances of property, required by law to be recorded, must be recorded in the office of the judge of probate.(Code 1852, §1268; Code 1867, §1537; Code 1876, §2147; Code 1886, §1791; Code 1896, §985; Code 1907, §3367; Code 1923, §6853; Code 1940, T. 47, §94.)Section 35-4-51 Section 35-4-51What instruments admitted to record; filing as notice of contents; section cumulative.
Except as may be otherwise provided by the Uniform Commercial Code, all deeds, mortgages, deeds of trust, bills of sale, contracts or other documents purporting to convey any right, title, easement, or interest in any real estate or personal property and all assignments of mortgages, deeds of trust or other securities for debt or extension agreements with respect thereto, when executed in accordance with law, shall be admitted to record in the office of the probate judge of any county. Their filing for registration shall constitute notice of their contents.
This section shall not be construed as superseding or repealing any other laws effective in Alabama relative to the subject matter in this article, but shall be held and construed to be cumulative.(Acts 1927, No. 442, p. 496; Code 1940, T. 47, §95; Acts 1965, No. 549, p. 811.)Section 35-4-51.1 Section 35-4-51.1Recordation of memorandum of lease; contents; effect.
(a) A memorandum of a lease may be recorded in lieu of the lease itself if the memorandum is executed and acknowledged by the lessor and the lessee and contains:
(1) The names of the lessor and lessee;
(2) The term of the lease;
(3) Any option of the lessee to renew or extend the term of the lease; and
(4) The specific legal description of the leased premises, or a survey or plot plan authorized under subsection (c) showing the location of the leased premises.
(b) A memorandum recorded under this section may also contain any other agreement made between the lessor and the lessee in the lease.
(c) A survey or plot plan may be used in lieu of a specific legal description to describe:
(1) Any part of a building on the leased premises, if the specific legal description of the real property on which the building is located is set forth in the memorandum, survey, or plot plan;
(2) Any part of the leased premises that is part of a larger tract of land, if the specific legal description of the larger tract is set forth in the memorandum, survey, or plot plan; or
(3) Real property of the lessor, in addition to the leased premises if:
a. The use of such additional real property is restricted, benefitted or otherwise affected by the terms of the lease; and
b. The specific legal description of the additional real property is set forth in the memorandum, survey, or plot plan.
(d) As to the provisions contained in a memorandum recorded under this section, recording the memorandum has the same effect as recording the lease itself.(Acts 1989, No. 89-942, p. 1850, §1.)Section 35-4-52 Section 35-4-52Petitions, decrees or orders of bankruptcy.
(a) A certified copy of the petition, with or without the schedules thereto, of the decree of adjudication or of the order approving the trustee's bond in bankruptcy proceedings under the provisions of the acts of the congress of the United States may be filed in the office of the judge of probate of every county in this state where the bankrupt owns or has an interest in real property situated in said county, and such filing shall constitute notice of such proceeding as may be provided by law.
(b) The judge of probate shall immediately file and record such certified copy in the lis pendens record kept in his office, note on it and in the record the hour and date of the filing and place and date of recording and index the same directly in the name of the bankrupt.(Acts 1953, No. 183, p. 236, §§1, 2.)Section 35-4-53 Section 35-4-53Bonds for title, etc.
Every bond for title or other written contract for the sale of land, acknowledged or witnessed as required by law, as well as any purchase money note, may be recorded in a similar manner as provided for the conveyances of lands and shall be notice to all subsequent purchasers, lienors and creditors of the existence of such bond, contract or note and of the rights of the parties thereto.(Code 1923, §6854; Code 1940, T. 47, §96.)Section 35-4-54 Section 35-4-54Conveyances of personal property brought into state by tenants for life or years.
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 was brought within 12 months thereafter; 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 person, as to purchasers and creditors without notice; provided, however, that nothing contained in this section shall be construed as applying to any leases, including, without limitation, leases under the Uniform Commercial Code.(Code 1852, §1285; Code 1867, §1555; Code 1876, §2164; Code 1886, §1808; Code 1896, §1001; Code 1907, §3378; Code 1923, §6869; Code 1940, T. 47, §112; Acts 1992, 2nd Ex. Sess., No. 92-700, p. 92, §604.)Section 35-4-55 Section 35-4-55Choses in action not 'personal property' within meaning used in division.
Choses in action are not included in the words 'personal property' in this division.(Code 1852, §1286; Code 1867, §1556; Code 1876, §2165; Code 1886, §1809; Code 1896, §1002; Code 1907, §3379; Code 1923, §6870; Code 1940, T. 47, §113.)Section 35-4-56 Section 35-4-56Patents.
Patents from this state or the United States to lands in this state may be recorded in the office of the judge of probate of the county in which the lands lie; and a certified copy of such record is evidence in any court of this state.(Code 1852, §1353; Code 1867, §1623; Code 1876, §2231; Code 1886, §1878; Code 1896, §1003; Code 1907, §3380; Code 1923, §6871; Code 1940, T. 47, §114.)Section 35-4-57 Section 35-4-57Deeds of assignment for benefit of creditors.
All deeds of assignment executed by debtors for the benefit of creditors shall, as soon as executed, be filed and recorded in the office of the judge of probate of the county in which the property is situated, and such deeds are operative in all respects as other deeds from the day of the delivery to the judge.(Code 1896, §1004; Code 1907, §3381; Code 1923, §6872; Code 1940, T. 47, §115.)Section 35-4-58 Section 35-4-58Mode of recording generally; time stamp; fees.
Judges of probate are to procure, at the expense of their counties, large and well-bound books, in which must be recorded in a fair hand, or by printing the same, or by the use of a typewriter or other writing or printing, photograph or photostat machine, word for word, conveyances of property and all other instruments authorized to be recorded, with the acknowledgments, proofs, schedules, plats, surveys, etc., belonging thereto; and, at the foot or in the margin of the record of each conveyance or other instrument, the day of the month and year of the delivery of the same for record must be specified. The judge making the record of any conveyance or other instrument must certify on the same when it was received and recorded and in what book and page the same is recorded and must deliver it to the party entitled thereto, or his order, on the payment of the fees of registration; but the judge of probate may refuse to indorse 'filed' on any conveyance or other instrument or to record the same until such fees of registration are paid and unless the conveyance or other instrument is witnessed, probated or acknowledged as required by this Code; provided, that in counties wherein a photostat machine or other similar photograph machine is used and an electric time clock or time stamp is used, the judge of probate may make the certificate required by this section by having same stamped upon the instrument with the electric time stamp to read as follows:
'STATE OF ALABAMA ______ COUNTY
I CERTIFY THIS INSTRUMENT WAS FILED ON THE ____ DAY OF _____ (Month), _____ (Year) at (time). Recorded book and page as shown above.
|(Signed) _____, Judge of Probate.”|
For making the certificate required by this section the judge of probate shall not be entitled to any additional fee for his service, other than that now provided for in section 12-19-90.(Code 1852, §1269; Code 1867, §1538; Code 1876, §2148; Code 1886, §1792; Code 1896, §986; Acts 1907, Ex. Sess., No. 56, p. 80; Code 1907, §3368; Code 1923, §6855; Acts 1927, No. 130, p. 89; Code 1940, T. 47, §97; Acts 1953, No. 281, p. 346.)Section 35-4-59 Section 35-4-59Conveyance operative as record from date of delivery; receipt.
The conveyance or other instrument is operative as a record from the day of the delivery to the judge; and anyone delivering a conveyance or other instrument for registration may require a receipt for same, describing it by date, parties thereto and property conveyed or described.(Code 1852, §1270; Code 1867, §1539; Code 1876, §2149; Code 1886, §1793; Code 1896, §987; Code 1907, §3369; Code 1923, §6856; Code 1940, T. 47, §98.)Section 35-4-60 Section 35-4-60Access to books; transcripts.
Such judge must permit all persons to have free access to such books during office hours and furnish transcripts therefrom, with certificates when required, upon the payment of lawful fees.(Code 1852, §1271; Code 1867, §1540; Code 1876, §2150; Code 1886, §1794; Code 1896, §988; Code 1907, §3370; Code 1923, §6857; Code 1940, T. 47, §99.)Section 35-4-61 Section 35-4-61Liability of probate judge for failure to perform duties generally.
If any judge of probate neglects or refuses to perform any of the duties required by this division, he is liable to a civil action for damages to the party injured and also to a penalty of $200.00, which may be sued for by the county treasurer for the use of the county or in his own name by the party aggrieved, for the joint use of himself and the county.(Code 1852, §1272; Code 1867, §1541; Code 1876, §2151; Code 1886, §1795; Code 1896, §989; Code 1907, §3371; Code 1923, §6858; Code 1940, T. 47, §100.)Section 35-4-62 Section 35-4-62Locations for recording conveyances in real property, deeds, mortgages, etc.
(a) Conveyances of real property shall be recorded in the county in which the property is situated.
(b) A deed, mortgage, certificate of judgment, state or federal tax lien, lis pendens, or financing statement filed pursuant to Article 9A (commencing with Section 7-9A-101) of Title 7, conveying or affecting an interest in real property in counties divided into divisions, in counties that maintain more than one courthouse, or in counties that maintain one or more courthouse annexes, may be recorded in either division of the county, in any courthouse located within the county, or in any courthouse annex located within the county when conveyances of real property recorded within the county are electronically stored and indexed so that retrieval of all recordings, after August 1, 2004, may be accomplished from any courthouse or courthouse annex within the county.(Code 1852, §1273; Code 1867, §1542; Code 1876, §2152; Code 1886, §1796; Code 1896, §990; Code 1907, §3372; Code 1923, §6859; Code 1940, T. 47, §101; Act 2004-628, §1.)Section 35-4-63 Section 35-4-63Recording effective as notice of contents of conveyance.
The recording in the proper office of any conveyance of property or other instrument which may be legally admitted to record operates as a notice of the contents of such conveyance or instrument without any acknowledgment or probate thereof as required by law.(Code 1852, §1274; Code 1867, §1543; Code 1876, §2153; Code 1886, §1797; Code 1896, §991; Code 1907, §3373; Code 1923, §6860; Code 1940, T. 47, §102.)Section 35-4-64 Section 35-4-64Purchasers protected in dealing with record owner as owner of indebtedness.
Purchasers of real property against which there are recorded mortgages, vendor's liens, judgments and other liens shall be protected in assuming that the record owner of such liens is the owner of the indebtedness secured by the same and in dealing with such record owner as the owner of such indebtedness.
Cancellation of the record of mortgages, vendor's liens, judgments and other liens by the record owner of the same shall be valid as to purchasers of the real property affected by liens of such character.(Acts 1927, No. 452, p. 503; Code 1940, T. 47, §103.)Section 35-4-65 Section 35-4-65When conveyance receivable in evidence.
Conveyances of property, real or personal, or any interest therein, whether absolute or on condition, which are acknowledged or proved according to law and recorded may be received in evidence in any court without further proof; and, if it appears to the court that the original conveyance has been lost or destroyed or that the party offering a transcript had not the custody or control thereof, the court must receive the transcript, duly certified, in the place of the original, unless the reputed maker is in bona fide possession of the property and makes and files an affidavit that the said conveyance is a forgery.(Code 1852, §1275; Code 1867, §1544; Code 1876, §2154; Code 1886, §1798; Code 1896, §992; Code 1907, §3374; Acts 1909, No. 9, p. 14; Code 1923, §6861; Code 1940, T. 47, §104.)Section 35-4-66 Section 35-4-66Recording certified copies of instruments.
It shall be lawful to record certified copies of deeds, mortgages, maps and other papers affecting the title to property in any probate office in this state in which the same should have been recorded when such mortgages, deeds, maps or other papers have heretofore been or may hereafter be recorded in any probate office in this state.
When a certified copy of any deed, mortgage, map or other paper affecting title to property has been recorded as provided for in this section, such recording shall in all things be considered as and shall be given the effect of the original paper if so recorded.(Acts 1935, No. 70, p. 156; Code 1940, T. 47, §105.)Section 35-4-67 Section 35-4-67Proof of conveyances executed in name of corporation.
(a) Any deed, mortgage or other conveyance of property which purports on its face to have been executed in the name of any corporation by any person as its president, vice-president, or secretary, or by any one or more of said persons, shall, when attested by one or more witnesses or acknowledged by such person or persons before any officer authorized by the laws of this state to take and certify acknowledgments, be prima facie evidence that such conveyance was executed in the name of said corporation by such person or persons as such officer or officers and that said person or persons were such officer or officers of said corporation and duly authorized by said corporation to execute said conveyance in its name.
(b) All conveyances of real property, or any interest therein, whether absolute or on condition, which have been executed and acknowledged as provided by subsection (a) of this section, or attested and proved as conveyances of real property by individuals are proved, shall, when recorded, be received in evidence in any court of this state without further proof.
(c) If it appears to the court that the original conveyance has been lost or destroyed or that the party offering a transcript has not the custody or control thereof, the court must receive the transcript, duly certified, in place of the original unless said corporation is in bona fide possession of the property and one of its officers makes affidavit that said conveyance is a forgery.(Acts 1911, No. 44, p. 31; Code 1923, §§6862-6864; Code 1940, T. 47, §§106-108.)Section 35-4-68 Section 35-4-68Form of proof or acknowledgment of conveyances.
All conveyances admitted to record on proof must be attested by two witnesses, and the proof or acknowledgment must comply substantially with the foregoing forms or the conveyances lose the privileges conferred by section 35-4-65.(Code 1852, §1261; Code 1867, §1550; Code 1876, §2160; Code 1886, §1804; Code 1896, §3375; Code 1907, §3375; Code 1923, §6866; Code 1940, T. 47, §109.)Section 35-4-69 Section 35-4-69Affidavits - Record as notice of facts recited; by whom made.
Affidavits heretofore recorded or that may hereafter be recorded showing the relationship of parties or other persons to conveyances of lands, the relationship of any parties to any conveyances with other parties whose names are shown in the chain of title to lands, whether or not any person or persons connected with the chain of title were married at the time of the execution of any conveyances, the ages of any person or persons connected with the chain of title, whether the lands embraced in any conveyance constituted a part of the homestead of any grantor, whether the lands embraced in any conveyance have been in the actual possession of any parties connected with the chain of title to either the surface or mineral rights of lands, or any other persons; and affidavits relating to the identity of parties whose names may be shown differently in chains of title; and affidavits showing the ownership and adverse possession of lands, that other persons have not owned such lands nor been in possession of same, that there is no outstanding dower interest in said lands; and affidavits stating any other fact or circumstance affecting title to land or any right, title, interest in or lien or encumbrance upon land, when so recorded, the record of said affidavits shall be notice of the facts therein recited; and any such affidavit may be made by any person whether connected with the chain of title or not.
This section shall apply to affidavits heretofore or hereafter made whether the same were made in connection with any particular transaction or merely to perfect title to land.(Acts 1915, No. 805, p. 919; Code 1923, §6873; Code 1940, T. 47, §116; Acts 1945, No. 343, p. 559.)Section 35-4-70 Section 35-4-70Affidavits - Admissibility as evidence.
In any litigation over any of the lands referred to and described in any of such affidavits, in any court in the state of Alabama or in any proceedings in any such court involving the title to such lands, wherein the facts recited in such affidavits may be material, the said affidavits or certified copies of the record thereof shall be admissible as evidence of the facts therein recited and shall be sufficient to prima facie establish such facts. The said affidavits or certified copies thereof shall only be admissible as evidence in the event the parties making the affidavits are deceased, are nonresidents of the state, their residence is unknown to the parties offering the affidavits or such parties are too old, infirm or sick to attend court.(Acts 1915, No. 805, p. 919; Code 1923, §6874; Code 1940, T. 47, §117; Acts 1945, No. 343, p. 559.)Section 35-4-71 Section 35-4-71Affidavits - Filing and recordation by probate judge.
The affidavits referred to in sections 35-4-69 and 35-4-70 shall be filed by the probate judge of the county where offered for filing and by him recorded and indexed in deed records as conveyances of lands are recorded and indexed, and he shall receive the same compensation therefor as for recording deeds to lands.(Acts 1915, No. 805, p. 919; Code 1923, §6875; Code 1940, T. 47, §118; Acts 1945, No. 343, p. 559.)Section 35-4-72 Section 35-4-72Improperly acknowledged or recorded instruments as evidence.
When a validly executed instrument, not properly acknowledged and recorded, has for 10 years been of record in the office of the judge of probate, the original or a duly certified transcript thereof shall have the same force and effect as evidence as such original or transcript would have had had such instrument been duly acknowledged and recorded.(Code 1907, §3382; Code 1923, §6876; Code 1940, T. 47, §119.)Section 35-4-73 Section 35-4-73Recitation of marital status of grantor or vendor required; probate judge not liable for good faith error; false recitation a misdemeanor.
(a) No deed, contract or other conveyance of land or any interest therein, whether legal or equitable, shall be accepted for record by the probate judge unless it contains a recitation of the marital status of an individual grantor or vendor; provided, that this section shall apply only to instruments executed subsequent to July 21, 1972.
(b) A probate judge shall not be liable in damages or for a penalty for an error or mistake in the performance of his duties under this section if committed in good faith.
(c) Any person who knowingly makes a false recitation, as provided in subsection (a) of this section, shall be guilty of a misdemeanor.(Acts 1971, 3rd Ex. Sess., No. 172, p. 4422.)Section 35-4-74 Section 35-4-74Necessity for including plat or description of plat book, etc.; probate judge not liable for good faith error.
(a) No instrument, other than a will, purporting to create or transfer any interest in land shall be accepted for record by a probate judge if such instrument describes the land in which such interest is to be created or transferred by reference to a plat and the plat is not attached to and made a part of the instrument or the instrument does not describe the plat book and the office in which such plat book is to be found and there is no description of the land by metes and bounds; provided, that this section shall apply only to instruments executed subsequent to July 21, 1972; provided further, that where, prior to July 21, 1972, any person has received a conveyance of land, or any interest therein, in which the land is described by reference to a plat which is not recorded and which is not available to him, this section shall not apply if the grantor or mortgagor recites in any instrument executed after July 21, 1972, that the plat is lost, destroyed or unavailable for recording.
(b) A probate judge shall not be liable in damages or for a penalty for any error or mistake in the performance of his duties under this section if committed in good faith.(Acts 1971, 3rd Ex. Sess., No. 171, p. 4422.)Section 35-4-75 Section 35-4-75Time for delivery of deed; when recorded contract presumed abandoned.
(a) Where any contract or extension thereof for the sale of any interest in land fails to state the time within which, or the circumstances under which, a deed is to be delivered, the time for the delivery of the deed shall be a reasonable time after the date on which the contract was entered into, and in no case more than one year subsequent to such date.
(b) Where any contract for the sale of any interest in land or any extension of such contract has been recorded or rerecorded and five years have elapsed since the time provided by the parties or by subsection (a) of this section for the delivery of the deed, whichever period shall be the longer, and no action has been brought for the specific performance of such contract or for the foreclosure of the vendee's interest or for the enforcement of an equitable lien arising from the contract and no lis pendens has been properly filed, a lienholder or a purchaser for value or mortgagee may conclusively presume that such contract has been abandoned by the parties thereto and that the vendee named in the contract and his successors in interest have no equitable claim against the land made the subject of the contract; provided, that this section shall not apply so long as the vendee named in the contract or his successors in interest shall be in actual possession of the land made the subject of the contract.
(c) This section shall apply to contracts and extensions thereof recorded before or after January 31, 1972; except, that the period of five years provided for in subsection (b) of this section shall not be deemed to have expired in any case until January 31, 1974.(Acts 1971, 3rd Ex. Sess., No. 179, p. 4439.)Section 35-4-76 Section 35-4-76Limitations on duration of option to purchase land.
(a) No option to purchase any interest in land, other than an option limited in favor of a lessee and exercisable at a time not later than the end of the term of a lease or any extension or renewal thereof, or an option to repurchase reserved by the grantor in a deed, shall be valid or enforceable for a period of more than 20 years. If any such option may, by the terms of the instrument creating it, continue to exist for longer than 20 years, it shall terminate and cease to be enforceable 20 years after the time of its creation. Where the instrument creating any such option shall place no limit upon the duration of the option or otherwise state the terms controlling the duration of the option, the option shall cease to be enforceable two years after the time of its creation. This section shall not apply to options created prior to January 31, 1972.
(b) Where an option to purchase land, or any interest therein, or any renewal or extension of such option, has been recorded in the public records of land and one year has elapsed since the expiration of such option or renewal or extension thereof, according to the terms of the recorded instrument by which it was created, extended or renewed, and no instrument of record gives notice that such option has been exercised, the instrument by which the option was created, renewed or extended shall cease to be notice of the option, its renewal or extension, nor shall any person be put on inquiry with respect to the exercise or existence of such option; provided, that this subsection shall become effective January 31, 1973.
(c) Subsection (b) of this section shall not apply where a person claiming an option is in possession of the land affected by the option.(Acts 1971, 3rd Ex. Sess., No. 180, p. 4440.)Section 35-4-90 Section 35-4-90Conveyances of real property generally.
(a) All conveyances of real property, deeds, mortgages, deeds of trust or instruments in the nature of mortgages to secure any debts are inoperative and void as to purchasers for a valuable consideration, mortgagees and judgment creditors without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees or judgment creditors.
(b) Subsection (a) of this section includes absolute conveyances of real property defeasible by a defeasance or other instrument, in which case such defeasance or instrument must be recorded, according to its character, within the time limited in subsection (a) of this section or it is void as to purchasers for a valuable consideration, mortgagees and judgment creditors of the original grantee without notice.(Code 1852, §§1287-1289; Code 1867, §§1557-1559; Code 1876, §§2166-2168; Code 1886, §§1810-1812; Code 1896, §§1005-1007; Code 1907, §§3383, 3384; Code 1923, §§6887, 6888; Code 1940, T. 47, §§120, 121.)Section 35-4-91 Section 35-4-91Instruments creating estates in remainder, etc.
All wills and conveyances, creating estates in lands in remainder or reversion or upon a condition, after an estate for life or lives, are inoperative and void as against the creditors of the tenant for life or lives in possession after a possession of five years by such tenant, unless the will or conveyance is recorded within five years from the entry and possession of such tenant.(Code 1852, §1290; Code 1867, §1560; Code 1876, §2169; Code 1886, §1813; Code 1896, §1008; Code 1907, §3385; Code 1923, §6889; Code 1940, T. 47, §122.)Section 35-4-92 Section 35-4-92Transfers of standing timber, trees and cutting rights.
Except as may be otherwise provided by article 9 of the Uniform Commercial Code, all conveyances, mortgages and other instruments executed hereafter for the purpose of transferring standing timber or trees, or cutting rights with respect thereto, or an interest therein, whether such timber, trees or rights shall be real or personal property, shall be recorded in the county in which such timber and trees are located in the same manner and books and under the same conditions that conveyances of real property are recorded in such county and with like effect; and no such instrument need be recorded elsewhere. Unless an instrument effecting such transfer and herein required to be recorded is so recorded, any such transfer shall be inoperative and void as against purchasers, mortgagees and judgment creditors without notice.(Acts 1951, No. 629, p. 1084; Acts 1965, No. 549, p. 811.)Section 35-4-93 Section 35-4-93Marriage settlements.
Personal property conveyed in consideration of marriage, when the possession remains with the husband or the husband and wife, must be taken as the property of the husband, in favor of purchasers without notice and creditors, unless such conveyance is recorded in the county of the husband's residence, within 12 months after such possession commenced in this state; and, if the husband removes to another county, within four months after such removal.(Code 1852, §1293; Code 1867, §1563; Code 1876, §2172; Code 1886, §1816; Code 1896, §1011; Code 1907, §3388; Code 1923, §6892; Code 1940, T. 47, §125.)Section 35-4-94 Section 35-4-94Loans in writing, wills or conveyances creating estates in personal property on condition, etc.
All loans in writing, wills or conveyances 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 hereinabove in this division specified and other than leases (including, without limitation, leases under the Uniform Commercial Code) and security agreements under the Uniform Commercial Code, and under which possession is suffered to remain for three years with the party entitled to the estate or use, vest an absolute estate in the person so having possession for such number of years as to creditors and purchaser of such person unless such loan, will or conveyance is recorded within such time in the county where such property is; provided, however, that nothing contained in this section shall be construed as applying to any lease, (including, without limitation, leases under the Uniform Commercial Code) or to any security interest or security agreement under the Uniform Commercial Code.(Code 1852, §1294; Code 1867, §1564; Code 1876, §2173; Code 1886, §1817; Code 1896, §1012; Code 1907, §3389; Code 1923, §6893; Code 1940, T. 47, §126; Acts 1965, No. 549, p. 811; Acts 1992, 2nd Ex. Sess., No. 92-700, p. 92, §605.)Section 35-4-95 Section 35-4-95Effect of loans of personal property not in writing.
All loans of personal property, not in writing, vest an absolute estate in the person in possession under such loan, as to purchasers and creditors of such person, after three years from the commencement of such loan, unless within that time the lender commences a civil action, in good faith, for the recovery of the property.(Code 1852, §1295; Code 1867, §1565; Code 1876, §2174; Code 1886, §1818; Code 1896, §1013; Code 1907, §3390; Code 1923, §6894; Code 1940, T. 47, §127.)Section 35-4-96 Section 35-4-96Conveyances of personalty to minors.
All conveyances of personal property in favor of minor children, except by will, where the custody, control and visible possession thereof is suffered to remain by the donor with the father or mother of such children, vest an absolute estate in such father or mother so in possession, in favor of the purchasers from, and creditors of, such father or mother, without notice, unless the conveyance is recorded within three years after such possession commenced in this state in the county of the residence of such father or mother.(Code 1852, §1296; Code 1867, §1566; Code 1876, §2175; Code 1886, §1819; Code 1896, §1014; Code 1907, §3391; Code 1923, §6895; Code 1940, T. 47, §128.)Section 35-4-97 Section 35-4-97Effect of parol gifts of personal property.
Parol gifts of personal property are inoperative until the custody, control, management and use of the property passes 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 must be considered the possession of the child.(Code 1852, §1297; Code 1867, §1567; Code 1876, §2176; Code 1886, §1820; Code 1896, §1015; Code 1907, §3392; Code 1923, §6896; Code 1940, T. 47, §129.)Section 35-4-98 Section 35-4-98When conditional sales contract received in evidence.
Such a conditional sales contract, when the execution thereof has been acknowledged or proved before an officer having authority to take and certify the acknowledgment of conveyances and when such contract has been duly recorded, must be received in evidence without other proof of execution; and, if the original of such contract is lost or destroyed, or the party offering in evidence a certified transcript has not the custody or control thereof, a certified transcript from the record thereof must be received in evidence without other proof of the execution of the original.(Code 1886, §1822; Code 1896, §1018; Code 1907, §3395; Code 1923, §6899; Code 1940, T. 47, §132.)Section 35-4-110 Section 35-4-110Instrument not recordable unless statement endorsed on it.
No probate judge shall receive for record or permit the recording of any instrument in which the title to real property, or any interest therein, or lien thereon, is conveyed, granted, encumbered, assigned or otherwise disposed of, or any instrument relating to the organization, reorganization or dissolution of a private corporation, unless such instrument has endorsed on it a printed, typewritten or stamped statement showing the name and address of the individual who prepared the instrument. If the instrument is in part composed of a printed form the person.preparing the instrument shall be the person who filled in the blanks in the form or examined the entries made in such blanks by some other person.(Acts 1965, No. 624, p. 1137, §1; Acts 1969, No. 121, p. 397; Acts 1971, 3rd Ex. Sess., No. 178, p. 4438, §1.)Section 35-4-111 Section 35-4-111Probate judge not liable for good faith errors.
The probate judge shall not be liable in damages or penalty for any error or mistake in the performance of the duties prescribed in this division if committed in good faith.(Acts 1965, No. 624, 1137, §2; Acts 1971, 3rd Ex. Sess., No. 178, p. 4438, §2.)Section 35-4-112 Section 35-4-112When division not applicable.
This division shall not apply to the recording of any will, decree, court order or judgment; nor to any instrument executed prior to July 21, 1972; except, that it shall apply to instruments executed since January 1, 1966, in counties having a population of over 600,000 inhabitants according to the 1960 or any succeeding federal census, and to all instruments executed since July 1, 1969, in counties having a population of 300,000 inhabitants according to the 1960 or a succeeding federal census.(Acts 1965, No. 624, p. 1137, §4; Acts 1971, 3rd Ex. Sess., No. 178, p. 4438, §3.)Section 35-4-113 Section 35-4-113Form.
An instrument will be in compliance with this division if it contains a statement in the following form: 'This instrument was prepared by (Name) ____ Address) ____.'(Acts 1965, No. 624, p. 1137, §5; Acts 1971, 3rd Ex. Sess., No. 178, p. 4438, §4.)Section 35-4-130 Section 35-4-130Lis pendens record.
The judge of probate of each county in this state shall keep in his office as a public record a suitable book, to be called a lis pendens record.(Acts 1915, No. 77, p. 122; Code 1923, §6877; Code 1940, T. 47, §65.)Section 35-4-131 Section 35-4-131Notice of actions, etc.
(a) When any civil action or proceeding shall be brought in any court to enforce any lien upon, right to or interest in, or to recover any land, or where an application has been made to the probate judge of any county for an order of condemnation of land, or any interest therein, the person, corporation or governmental body commencing such action or proceeding or making such application shall file with the judge of probate of each county where the land or any part thereof is situated a notice containing the names of all of the parties to the action or proceeding, or the persons named as those having an interest in the land in the application for an order of condemnation, a description of the real estate and a brief statement of the nature of the lien, writ, application or action sought to be enforced. The judge of probate shall immediately file and record the notice in the lis pendens record and note on it and in the record the hour and date of the filing and the place and date of recording.
(b) A copy of the notice required by section 6-6-564, regarding in rem proceedings involving claims to title of land, certified by the register or clerk as being correct, shall also be recorded as a lis pendens in the office of probate judge of the county where the lands lie.(Acts 1915, No. 77, p. 122; Acts 1923, No. 526, p. 699; Code 1923, §§6878, 9916; Code 1940, T. 7, §1120; Code 1940, T. 47, §66; Acts 1971, 3rd Ex. Sess., No. 181, p. 4441, §1.)Section 35-4-132 Section 35-4-132Notice of levy.
When a sheriff, constable, United States marshal or other officer shall levy upon land by virtue of any process, he shall file with the judge of probate of each county where the land or any party thereof is situated a notice of the levy, showing the names of the parties to the proceeding, the kind of process and a description of the land levied on. The judge of probate shall file and record and note upon the notice and record as in section 35-4-131.(Acts 1915, No. 77, p. 122; Code 1923, §6879; Code 1940, T. 47, §67; Acts 1971, 3rd Ex. Sess., No. 181, p. 4441, §2.)Section 35-4-133 Section 35-4-133Notices to be recorded in full; indorsement on original.
Any notice filed with the judge of probate under this article shall be recorded in such record in full, and the original of such notice shall bear the indorsement of the time of filing for record and the book and page wherein such notice is recorded.(Acts 1915, No. 77, p. 122; Code 1923, §6884; Code 1940, T. 47, §72.)Section 35-4-134 Section 35-4-134Index of notices.
The judge of probate, upon filing and recording each notice, shall index the same, both directly and indirectly, under the name of each party to the proceeding.(Acts 1915, No. 77, p. 122; Code 1923, §6880; Code 1940, T. 47, §68.)Section 35-4-135 Section 35-4-135Bona fide purchasers, etc., protected upon failure to record notice.
If the notice required by sections 35-4-131 and 35-4-132 shall not be entered in the lis pendens record, the action, proceeding or application shall not affect the rights of a bona fide purchaser, lessee or mortgagee of any interest in such land or any person then or thereafter asserting a lien against such land unless he or they have actual notice of the action, proceeding, levy or application.(Acts 1915, No. 77, p. 122; Code 1923, §6881; Code 1940, T. 47, §69; Acts 1971, 3rd Ex. Sess., No. 181, p. 4441, §3.)Section 35-4-136 Section 35-4-136Record of termination of action; microfilm.
Where the action, proceeding or levy, notice of which has been entered in the lis pendens record, shall be terminated, whether on the merits or not, the court wherein the same was pending may direct the judge of probate who has custody of the record to make such entry thereof as he shall prescribe, to give notice of the result of the action, proceeding or levy and of the devolution of the land, and the judge of probate shall at once, on presentation thereof, file and record an entry and note the date of filing and recording on the record; provided, that where an application has been made for an order of condemnation of land, or any interest therein, the probate judge shall make such entry on his own motion. The officer or party filing such notice must, within 30 days after demand, enter on the margin of the record of the same satisfaction of such claim under the lis pendens notice whenever the same shall have been fully satisfied or terminated, and such satisfaction shall have the same effect as if made by the judge of probate as provided in this article. Nothing in this section, nor in section 35-4-137, shall be construed to alter the form used in maintaining the lis pendens records in those counties where the public land records are, by authority of the statute law of the state of Alabama, maintained on microfilm.(Acts 1915, No. 77, p. 122; Code 1923, §6882; Code 1940, T. 47, §70; Acts 1971, 3rd Ex. Sess., No. 181, p. 4441, §4.)Section 35-4-137 Section 35-4-137Release of land from lien upon execution of bond.
When any lis pendens in an action or proceeding to enforce a lien has been filed and recorded in the office of the judge of probate, as prescribed in sections 35-4-131 and 35-4-132, the person owning or claiming the land described in the lis pendens may at any time, before a judgment is entered enforcing the lien, nullify the notice given by such lis pendens by executing a bond with sufficient surety in double the amount of the fair market value of the land described in the lis pendens and as to which the lis pendens is to be nullified, the amount of the bond and the surety or sureties thereon to be approved by the judge of probate. The bond shall be payable to the judge of probate and conditioned to pay any sum of money found to be a lien against such land, up to the fair market value of the said land, said payment to be made by 12:00 noon of the day and at the place appointed for the sale thereof. When said bond has been taken and approved by the judge of probate, he shall make a notation of the same on the margin of the record of the lis pendens and on the margin of the record of the lien referred to in said lis pendens. If the makers of such bond do not make payment according to the conditions thereof, the court officer advertising the sale of such land shall within five days thereafter forfeit said bond and issue or have issued from the proper court officer, without delay, an execution on the forfeited bond against all the obligors therein for the amount found to be a lien upon said land relieved and released by said bond, up to the fair market value of said land so relieved and released, together with all lawful costs, all of which shall be endorsed on the said execution. The judge of probate of each county in the state of Alabama shall keep in his office as a public record a suitable book, appropriately designated, in which all such bonds shall be recorded and properly indexed. The judge of probate, for the services required of him, shall receive a fee of $1.00 for approving the said bond and $.15 per 100 words for recording said bond, which fee shall be paid by the person filing the same.(Acts 1931, No. 701, p. 826; Code 1940, T. 47, §74; Acts 1971, 3rd Ex. Sess., No. 181, p. 4441, §5.)Section 35-4-138 Section 35-4-138Fees for recording notice.
The judge of probate, for the services required of him, shall receive a fee of $.15 for each 100 words for recording such notice, which fee shall be paid by the person filing the same.(Acts 1915, No. 77, p. 122; Code 1923, §6885; Code 1940, T. 47, §73.)Section 35-4-139 Section 35-4-139Liability of judges and officers on bonds.
If any judge of probate shall fail to perform any of the duties required of him by this article, he shall be liable on his official bond to any party injured for all damages he may sustain; and, if any sheriff, constable, marshal or other officer shall fail to file the notice provided for in this article, upon the levy by him of any process on real estate, he shall be liable on his bond for all damages resulting therefrom.(Acts 1915, No. 77, p. 122; Code 1923, §6883; Code 1940, T. 47, §71.)Section 35-4-150 Section 35-4-150Civil action for reformation of conveyances containing erroneous description.
Any person claiming title to land directly or remotely from the grantee in a deed, mortgage or other conveyance containing an erroneous description, may maintain a civil action in a circuit court for the reformation of such deed, mortgage or other conveyance and shall be entitled to relief in all cases in which the grantee in the deed, mortgage or other conveyance containing an erroneous description would be entitled to relief.(Acts 1911, No. 227, p. 199; Code 1923, §6960; Code 1940, T. 47, §133.)Section 35-4-151 Section 35-4-151Error in any description sufficient to maintain civil action.
In order to authorize a person claiming title under the grantee in a deed, mortgage or other conveyance containing an erroneous description to maintain a civil action for the reformation of the same, it shall not be necessary that there shall be any error in description in all the conveyances constituting the chain of title from the grantor in the conveyance containing the erroneous description to the complainant; but, if it shall reasonably appear that it was the purpose or intention of each grantor to convey the land which was intended to be conveyed in said deed, mortgage or other conveyance containing the erroneous description, the complainant shall be entitled to a reformation of such deed, mortgage or other conveyance.(Acts 1911, No. 227, p. 199; Code 1923, §6961; Code 1940, T. 47, §134.)Section 35-4-152 Section 35-4-152Grantors, etc., may be made parties defendant.
The grantors in any number of conveyances in the chain of title of the complainant may be made parties defendant to the civil action for the reformation of the description in any one or more of such conveyances, and the joining of the grantors in several conveyances in the chain of title shall not make the complaint multifarious or objectionable by reason of the misjoinder of parties defendant.(Acts 1911, No. 227, p. 199; Code 1923, §6962; Code 1940, T. 47, §135.)Section 35-4-153 Section 35-4-153Fraud or mistake.
When, through fraud, or a mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a deed, mortgage or other conveyance does not truly express the intention of the parties, it may be revised by a court on the application of the party aggrieved so as to express that intention, insofar as this can be done without prejudice to rights acquired by third persons in good faith and for value.(Code 1923, §6825; Code 1940, T. 47, §136.)Section 35-4-170 Section 35-4-170Remainders not defeated by acts of life tenants.
No estate or interest of any person can be defeated, discontinued or extinguished by the act of any third person having a possessory or ulterior interest, except in the cases especially provided by this Code.(Code 1852, §1305; Code 1867, §1575; Code 1876, §2184; Code 1886, §1830; Code 1896, §1026; Code 1907, §3406; Code 1923, §6910; Code 1940, T. 47, §63.)Section 35-4-171 Section 35-4-171Removal of personalty.
The tenant for life in personalty cannot remove it beyond the jurisdiction of this state without the consent of the remainderman. If he attempts to do so, the remainderman or reversioner is entitled to the writ of ne exeat to restrain him.(Code 1907, §3407; Code 1923, §6911; Code 1940, T. 47, §64.)Section 35-4-190 Section 35-4-190Duty of court to ascertain present value and make payment.
Excepting in cases where the dower interest of the widow of a decedent is sold during process of administration of such decedent's estate, in all cases where lands are sold for division among joint owners or tenants in common and where lands are taken under the power of eminent domain, and one or more persons own a dower or life interest in the whole or in an undivided interest in such lands, the court having jurisdiction of the action in which such lands are sold or taken, as aforesaid, after the proceeds are paid into court, shall, upon the sworn application of any person owning such dower interest or life interest, or any remainder or reversionary interest therein, ascertain the present value of such dower or life estate and pay to the owner of such dower or life interest in cash the value of such interest, the remainder to be paid to the reversioners or remaindermen.(Acts 1945, No. 446, p. 684, §1.)Section 35-4-191 Section 35-4-191Application; notice; guardian ad litem; hearing; costs.
(a) The application referred to in section 35-4-190 shall set out the names and places of residence of all the persons interested in the funds in which such dower or life interest exists, stating which, if any, are infants or persons of unsound mind. If any of the parties or their places of residence are unknown, the application shall so state. The court shall set a day for the hearing of said application not less than 30 days from the date of the filing thereof, and notice thereof shall be given by the clerk, judge or register and served on such other persons as may be interested in the funds, residing in the state, not less than 10 days prior to the hearing; and, if any are nonresidents or their names or places of residence are unknown, then service on them shall be by registered or certified mail where practicable in the same manner as now provided by law for service by registered mail, or by publication once a week for three successive weeks in some newspaper published in the county or, if none are published in the county, then in some newspaper published in an adjoining county. The hearing shall take place on the day set or on any day to which said hearing may be continued. A guardian ad litem shall be appointed to represent infants or persons of unsound mind. All costs of such proceedings, including any fee for the guardian ad litem, shall be paid out of the common fund in which the life or dower interest exists, to the end that, as nearly as may be, the life tenant shall be taxed with such proportion of such costs as his share of the common fund, when ascertained, shall bear to the whole; provided, however, that the court shall be clothed with discretion in such taxation of costs as to it may otherwise appear just and equitable.
(b) In ascertaining the value of such life interest, the court may examine witnesses touching their opinion on such value and may take into consideration the age and health of the life tenant, the earning power of the money representing the lands or the interest therein, as well as any other factor which may reasonably shed light on the inquiry. Witnesses may be examined orally or by depositions, and no notice shall be required for oral examination of such witnesses on the day set for the hearing, any rule of civil procedure or probate practice to the contrary notwithstanding.(Acts 1945, No. 446, p. 684, §§2, 3.)Section 35-4-192 Section 35-4-192Appeals.
Any party feeling aggrieved by the finding of the court may invoke an appeal therefrom to the supreme court or the court of civil appeals within 30 days from the date of such order or judgment by giving security for costs to be approved in the same manner as now provided for in appealing from the judgments of the court in which such proceeding was had.(Acts 1945, No. 446, p. 684, §4.)Section 35-4-210 Section 35-4-210Definitions.
As used in this article, the following terms shall have the meanings respectively ascribed to them in this section, unless the context clearly indicates a different meaning:
(1) ESTATE IN REMAINDER. One limited to be enjoyed after another estate is determined or at a time specified in the future.
(2) ESTATE IN REVERSION. The residue of an estate, usually the fee, left in the grantor and his heirs after the determination of a particular estate which he has granted out of it.
(3) RIGHTS OF THE REVERSIONER. The same rights as those of a vested remainderman in fee.(Code 1907, §3400; Code 1923, §6904; Code 1940, T. 47, §139.)Section 35-4-211 Section 35-4-211Vested or contingent remainders generally.
Remainders are either vested or contingent. A vested remainder is one limited to a certain person at a certain time or upon the happening of a necessary event. A contingent remainder is one limited to an uncertain person or upon an event which may or may not happen.(Code 1907, §3401; Code 1923, §6905; Code 1940, T. 47, §140.)Section 35-4-212 Section 35-4-212Contingent remainder in lands equivalent to executory devise.
No estate in lands can be created by way of contingent remainder; but every estate created by any will or conveyance, which might have taken effect as a contingent remainder, has the same properties and effect as an executory devise.(Code 1852, §1301; Code 1867, §1571; Code 1876, §2180; Code 1886, §1826; Code 1896, §1022; Code 1907, §3398; Code 1923, §6902; Code 1940, T. 47, §137.)Section 35-4-213 Section 35-4-213Remainder limited after death without heirs or issue.
Where a remainder in real or personal property is limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the word 'heirs' or 'issue' must be construed to mean heirs or issue living at the death of the person named as ancestor.(Code 1852, §1302; Code 1867, §1572; Code 1876, §2181; Code 1886, §1827; Code 1896, §1023; Code 1907, §3399; Code 1923, §6093; Code 1940, T. 47, §138.)Section 35-4-230 Section 35-4-230Abolished.
Where a remainder created by a deed or will is limited to the heirs, issue or heirs of the body of a person to whom a life estate in the same property is given, the persons who, on the termination of the life estate, are the heirs, issue or heirs of the body of such tenant for life are entitled to take as purchasers by virtue of the remainder so limited to them.(Code 1852, §1304; Code 1867, §1574; Code 1876, §2183; Code 1886, §1829; Code 1896, §1025; Code 1907, §3403; Code 1923, §6907; Code 1940, T. 47, §141.)Section 35-4-231 Section 35-4-231Character of estate pur autre vie.
An estate during the life of a third person, whether limited to his heirs or otherwise, is a freehold only during the life of the grantee or devisee; but after his death it is a chattel real.(Code 1852, §1594; Code 1867, §1915; Code 1876, §2279; Code 1886, §1950; Code 1896, §4246; Code 1907, §3404; Code 1923, §6908; Code 1940, T. 47, §142.)Section 35-4-232 Section 35-4-232Conveyance of greater estate by tenant for life or years passes his estate.
A conveyance made by a tenant for life or years, purporting to convey a greater interest than he possesses or can lawfully convey, does not work a forfeiture of his estate but passes to the grantee all the estate which the tenant could lawfully convey.(Code 1852, §1317; Code 1867, §1587; Code 1876, §2196; Code 1886, §1842; Code 1896, §1036; Code 1907, §3405; Code 1923, §6909; Code 1940, T. 47, §143.)Section 35-4-250 Section 35-4-250Effect of use, trust or confidence for mere benefit of third persons.
No use, trust or confidence can be declared of any land, or of any charge upon the same, for the mere benefit of third persons; and all assurances declaring any such use, trust or confidence must be held and taken to vest the legal estate in the person or persons for whom the same is declared; and no estate or interest can vest thereby in any trustee.(Code 1852, §1306; Code 1867, §1576; Code 1876, §2185; Code 1886, §1831; Code 1896, §1027; Code 1907, §3408; Code 1923, §6912; Code 1940, T. 47, §144.)Section 35-4-251 Section 35-4-251Trusts may be created for lawful purpose; necessity for legal title to vest in trustees.
Nothing in section 35-4-250 contained shall prevent the conveyance of real or personal property, or the issue, rents and profits thereof, to another in trust for the use of the grantor, or his family, or of a third person, or for any other lawful purpose; including specified charities, whether the beneficiaries of the charitable gift are adequately or inadequately set out in the instrument. But for a trust to be valid as a trust the legal title throughout the trust must vest in one or more trustees, with the power and duty to manage the trust property, subject to the supervision of the courts; and if a trust for charity is impracticable, or too indefinite to admit enforcement, or ceases to admit of practicable enforcement, a court on application of the trustee or of any person charged alone or with others with the administration of the charity may order an approximate or cy pres carrying out of the trust.(Code 1852, §1307; Code 1867, §1577; Code 1876, §2186; Code 1886, §1832; Code 1896, §1028; Code 1907, §3409; Code 1923, §6913; Code 1940, T. 47, §145.)Section 35-4-252 Section 35-4-252Term of trust for accumulation.
No trust of estates for the purpose of accumulation only can have any force or effect for a longer term than 10 years, unless when for the benefit of a minor in being at the date of conveyance, or if by will, at the death of the testator; in which case the trust may extend to the termination of such minority.(Code 1852, §1310; Code 1867, §1580; Code 1876, §2189; Code 1886, §1835; Code 1896, §1031; Code 1907, §3410; Code 1923, §6914; Code 1940, T. 47, §146.)Section 35-4-253 Section 35-4-253Application of income for accumulation to support of minor.
When a minor for whose benefit an accumulation has been directed is destitute of other sufficient means of support and education, the appropriate court, upon application, may direct a suitable sum to be applied thereto out of the fund.(Code 1923, §6915; Code 1940, T. 47, §147.)Section 35-4-254 Section 35-4-254Responsibility of payor for payment made to trustee.
In all cases in which a payment has been or may be made to a trustee authorized to receive the same, the person making such payment is not responsible for its application according to the trust, nor can any right or title derived from such trustee, in consideration of such payment, be impeached on account of any misapplication of the same, unless it be made to appear that the person making such payment colluded with the trustee, or knew of his intention to waste or mismanage the funds.(Code 1852, §1318; Code 1867, §1588; Code 1876, §2197; Code 1886, §1843; Code 1896, §1039; Code 1907, §3411; Code 1923, §6916; Code 1940, T. 47, §148.)Section 35-4-255 Section 35-4-255Trust concerning lands required to be in writing.
No trust concerning lands, except such as results by implication or construction of law, or which may be transferred or extinguished by operation of law, can be created, unless by instrument in writing, signed by the party creating or declaring the same, or his agent or attorney lawfully authorized thereto in writing.(Code 1852, §1320; Code 1867, §1590; Code 1876, §2199; Code 1886, §1845; Code 1896, §1041; Code 1907, §3412; Code 1923, §6917; Code 1940, T. 47, §149.)Section 35-4-256 Section 35-4-256Trust void as to creditors or purchasers without notice.
No such trusts, whether implied by law or created or declared by the parties, can defeat the title of creditors or purchasers for a valuable consideration without notice.(Code 1852, §1321; Code 1867, §1591; Code 1876, §2200; Code 1886, §1846; Code 1896, §1042; Code 1907, §3413; Code 1923, §6918; Code 1940, T. 47, §150.)Section 35-4-257 Section 35-4-257Recording as notice of trust.
When a trust is created or declared by any such instrument in writing, the recording thereof in the county where the lands lie is equivalent to actual notice to every person claiming under a conveyance made or lien created after such recording.(Code 1852, §1322; Code 1867, §1592; Code 1876, §2201; Code 1886, §1847; Code 1896, §1043; Code 1907, §3414; Code 1923, §6919; Code 1940, T. 47, §151.)Section 35-4-258 Section 35-4-258Trust estate not descendible upon death of trustee.
Upon the death of a sole or surviving trustee of an express trust, the trust estate does not descend to his heirs or pass to his personal representatives.(Code 1852, §1323; Code 1867, §1593; Code 1876, §2202; Code 1886, §1848; Code 1896, §1044; Code 1907, §3415; Code 1923, §6920; Code 1940, T. 47, §152.)Section 35-4-259 Section 35-4-259Trusts for employees or self-employed persons.
(a) A trust of real or personal property or real and personal property combined:
(1) Which is created by an employer as part of a stock bonus plan, pension plan, disability or death benefit plan or profit-sharing plan, for the exclusive benefit of some or all his employees, to which contributions are made by such employer or employees, or both, for the purpose of distribution to such employees the earnings of the principal, or both earnings and principal of the fund so held in trust; or
(2) Which is created by a self-employed person or group of self-employed persons and
a. Which is part of a retirement, disability or death benefit plan for such self-employed person or persons and
b. Contributions to which are deductible, in whole or in part, from gross income for federal income tax purposes under the internal revenue laws of the United States; or
(3) Which is created for the collective investment of the funds of trusts which fall within the coverage of subdivisions (1) or (2) above shall not be deemed to be invalid as violating any existing laws against perpetuities or against suspension of the power of alienation of title to property or against trusts for the purpose of the accumulation of income; but such a trust may continue for such a time as may be necessary to accomplish the purpose for which it was created.
(b) This section shall apply to all trusts of the nature specified in subsection (a) of this section whether now in existence or hereafter created.
(c) Any employee who has the power to benefit others under the terms of any trust, including a pension or profit-sharing trust or any trust which has been created as a part of a stock bonus plan, pension plan, disability or death benefit plan or profit-sharing plan, which has been created for the direct or indirect benefit of any class or classes or employees of one or more employers, may designate any person as a primary, contingent, alternate, joint or other beneficiary in accordance with the terms of the instrument governing such trust. Such designation, in the form, if any, required by the terms of the instrument governing such trust, shall be effective to give to such designated beneficiary the benefits provided under the terms of the instrument governing such trust, notwithstanding any law which would otherwise make ineffective such designation, including, but without limitation to, any rule against perpetuities or law respecting testamentary dispositions; provided, that any such designation must be in writing.
(d) Any trustee or other person, including any person, corporation or national banking association, is authorized to make payment to any person, or his legal representative, designated as provided in subsection (c) of this section, and no trustee or other person shall be liable in any way to any person for making payment to a person, or his legal representative, so designated.
(e) This section shall not be construed to indicate any invalidity of designations such as are provided in subsection (c) of this section made prior to September 9, 1961. This section shall not be construed to impose liability for the payment by a trustee or other person, in accordance with the terms of a trust instrument, to a person or his legal representative, not designated as provided herein.(Acts 1945, No. 306, p. 499; Acts 1961, No. 1014, p. 1592.)Section 35-4-260 Section 35-4-260Trusts consisting of insurance policies or proceeds.
Trusts consisting solely of policies of life, health, accident or disability insurance, or of the proceeds or avails thereof, shall for the purpose of determining whether any law against perpetuities or suspension of the power of alienation of title to property is applicable thereto be regarded as created when the liability of the insurer accrues by reason of the occurrence of the event insured against, whether or not a power to revoke the trust as to the policies was reserved during the life of the insured and whether or not any beneficial interest in the policies is alienable by the beneficiaries and whether or not the beneficiary or beneficiaries were in being at the time of the creation of the trust.(Acts 1949, No. 265, p. 389.)Section 35-4-270 Section 35-4-270Warranties by tenant for life.
All warranties by any tenant for life are void as against those in remainder or reversion, and it shall not be necessary for those in remainder or reversion to bring any action or file any complaint to recover such property or set aside or limit such conveyance or declare their interest until they are entitled to such property, and no statute of limitation or repose shall operate against them until such time as they are entitled to such property.(Code 1852, §1313; Code 1867, §1583; Code 1876, §2192; Code 1886, §1838; Code 1896, §1034; Code 1907, §3420; Code 1923, §6925; Code 1940, T. 47, §153.)Section 35-4-271 Section 35-4-271Construction of words 'grant,' 'bargain' or 'sell'; when covenants of warranty implied.
In all conveyances of estates in fee, the words 'grant,' 'bargain,' 'sell' or either of them, must be construed, unless it otherwise clearly appears from the conveyance, an express covenant to the grantee, his heirs and assigns, that the grantor was seised of an indefeasible estate in fee simple, free from incumbrances done or suffered by the grantor, except the rents and services that are reserved; and also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by the express words of such conveyance; and the grantee, his heirs, personal representatives, and assigns may, in any action, assign breaches, as if such covenants were expressly inserted.(Code 1852, §1314; Code 1867, §1584; Code 1876, §2193; Code 1886, §1839; Code 1896, §1035; Code 1907, §3421; Code 1923, §6926; Code 1940, T. 47, §154.)Section 35-4-290 Section 35-4-290Reservation of power by grantor.
(a) The grantor, in any conveyance, may reserve to himself any power beneficial, or in trust, which he may lawfully grant to another.
(b) When the grantor in any conveyance reserves to himself, for his own benefit, an absolute power of revocation, such grantor must be taken as the absolute owner of the estate conveyed, as to the rights of creditors and purchasers.(Code 1852, §§1324, 3529; Code 1867, §§1594, 1599; Code 1876, §§2203, 2208; Code 1886, §§1849, 1854; Code 1896, §§1045, 1050; Code 1907, §§3422, 3427; Code 1923, §§6927, 6932; Code 1940, T. 47, §§75, 80.)Section 35-4-291 Section 35-4-291Powers deemed absolute.
Every power of disposition is deemed absolute, by means of which the donee of such power is enabled in his lifetime to dispose of the entire fee for his own benefit; and, where a general and beneficial power to devise the inheritance is given to a tenant for years or for life, it is absolute within the meaning of subsections (b) and (c) of section 35-4-292.(Code 1852, §1328; Code 1867, §1598; Code 1876, §2207; Code 1886, §1853; Code 1896, §1049; Code 1907, §3426; Code 1923, §6981; Code 1940, T. 47, §79.)Section 35-4-292 Section 35-4-292Effect of grant of absolute power.
(a) When an absolute power of disposition, not accompanied by any trust, is given to the owner of a particular estate for life or years, such estate is changed into a fee absolute, as to the rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power is not executed or the lands sold for the satisfaction of debts during the continuance of such particular estate.
(b) When a like power of disposition is given to any person to whom no particular estate is limited, such person also takes a fee, subject to any future estate which may be limited thereon; but absolute in respect to creditors and purchasers.
(c) In all cases where such absolute power of disposition is given, not accompanied by any trust, and no remainder is limited on the estate of the donee of the power, he has an absolute fee.(Code 1852, §§1325-1327; Code 1867, §§1595-1597; Code 1876, §§2204, 2206; Code 1886, §§1850-1852; Code 1896, §§1046-1048; Code 1907, §§3423-3425; Code 1923, §§6928-6930; Code 1940, T. 47, §§76-78.)Section 35-4-293 Section 35-4-293Dispositions valid to extent of power.
No disposition by virtue of a power is void on the ground that it is more extensive than was authorized by the power; but every estate or interest thus created is valid only so far as the same is embraced by the power.(Code 1852, §1330; Code 1867, §1600; Code 1876, §2209; Code 1886, §1855; Code 1896, §1051; Code 1907, §3428; Code 1923, §6933; Code 1940, T. 47, §81.)Section 35-4-294 Section 35-4-294Power disposing of real estate required to be in writing.
No power of disposing of real estate can be executed, except by an instrument in writing, which would be sufficient in law to pass the estate or interest intended to pass under such power if the person executing the power were the actual owner.(Code 1852, §1331; Code 1867, §1601; Code 1876, §2210; Code 1886, §1856; Code 1896, §1052; Code 1907, §3429; Code 1923, §6934; Code 1940, T. 47, §82.)Section 35-4-295 Section 35-4-295Requirements for disposition by devise or will.
When a power to dispose of lands is confined to a disposition by devise or will, the instrument of execution must be by will, duly executed as wills of real estate are required by law.(Code 1852, §1332; Code 1867, §1602; Code 1876, §2211; Code 1886, §1857; Code 1896, §1053; Code 1907, §3430; Code 1923, §6935; Code 1940, T. 47, §83.)Section 35-4-296 Section 35-4-296Execution in cases where instrument specified is insufficient.
When the donor of a power has directed it to be executed by an instrument not sufficient in law to pass the estate, the power is not void but may be executed by an instrument sufficient to pass such estate.(Code 1852, §1333; Code 1867, §1603; Code 1876, §2212; Code 1886, §1858; Code 1896, §1054; Code 1907, §3431; Code 1923, §6936; Code 1940, T. 47, §84.)Section 35-4-297 Section 35-4-297Disposition by, between or among several persons generally.
When a disposition under a power is directed to be made by, between or among several persons, without specifying the sum or share to be alloted to each, all the persons designated are entitled to an equal proportion; but when the terms of the power import that the estate or fund is to be distributed between the persons so designated, in such manner or proportion as the trustee of the power may think proper, the distribution or apportionment made by such trustee cannot be impeached on the ground that it is unsubstantial, illusory or nominal.(Code 1852, §1334; Code 1867, §1604; Code 1876, §2213; Code 1886, §1859; Code 1896, §1055; Code 1907, §3432; Code 1923, §6937; Code 1940, T. 47, §85.)Section 35-4-298 Section 35-4-298Execution of power upon death of trustee with right of selection.
If the trustee of a power, with the right of selection, dies, leaving the power unexecuted, its execution may be ordered for the equal benefit of all the persons designated as the objects of the trust.(Code 1852, §1335; Code 1867, §1605; Code 1876, §2214; Code 1886, §1860; Code, 1896, §1056; Code 1907, §3433; Code 1923, §6938; Code 1940, T. 47, §86.)Section 35-4-299 Section 35-4-299Consent of third persons to execution of power.
When the consent of a third person to the execution of a power is requisite, such consent must be expressed in the instrument by which the power is executed or must be certified in writing thereon; in the first case, the instrument and in the second, the writing must be signed by the party whose consent is required.(Code 1852, §1336; Code 1867, §1606; Code 1876, §2215; Code 1886, §1861; Code 1896, §1057; Code 1907, §3434; Code 1923, §6939; Code 1940, T. 47, §87.)Section 35-4-300 Section 35-4-300Disposition to or among children.
When a disposition under an appointment or a power is directed to be made to or among the children of any person, without restricting it to any particular children, it may be exercised in favor of the grandchildren or other descendants of such person.(Code 1852, §1337; Code 1867, §1607; Code 1876, §2216; Code 1886, §1862; Code 1896, §1058; Code 1907, §3435; Code 1923, §6940; Code 1940, T. 47, §88.)Section 35-4-301 Section 35-4-301Powers irrevocable unless otherwise indicated.
Every power, beneficial or in trust, is irrevocable, unless an authority to revoke it is contained or reserved in the instrument creating the power.(Code 1852, §1338; Code 1867, §1608; Code 1876, §2217; Code 1886, §1863; Code 1896, §1059; Code 1907, §3436; Code 1923, §6941; Code 1940, T. 47, §89.)Section 35-4-302 Section 35-4-302Release of powers.
(a) Any power which is exercisable by deed, by will, by deed or will, or otherwise, whether general or special, other than a power in trust which is imperative, is releasable, either with or without consideration, by written instrument signed by the grantee and delivered as provided in this section.
(b) A power which is releasable may be released with respect to the whole or any part of the property subject to such power and may also be released in such manner as to reduce or limit the persons or objects, or classes of persons or objects, in whose favor such power would otherwise be exercisable. No release of a power shall be deemed to make imperative a power which was not imperative prior to such release unless the instrument of release expressly so provides.
(c) Such release may be delivered to any of the following:
(1) Any person specified for such purpose in the instrument creating the power.
(2) Any trustee of the property to which the power relates.
(3) Any person, other than the grantee, who could be adversely affected by an exercise of the power.
(4) The judge of probate of the county in which the grantee resides or has a place of business or in which the deed, will or other instrument creating the power is filed, for recording as provided by law with reference to the recording of deeds.
(d) This section shall apply to releases hereafter delivered and also to releases delivered heretofore but on or after July 1, 1942.(Acts 1945, No. 67, p. 64.)Section 35-4-303 Section 35-4-303Execution of power by surviving or acting executors; presumption that power not personal.
Where lands are devised to one or more executors, or a naked power given by the will to sell, the survivor or survivors, where there are more than one named in the will, and the acting executor or executors, when any one or more of them dies, resigns, refuses to act or is removed by a court of competent authority, and also an administrator with the will annexed has the same interest in and power over such lands for the purpose of making sale thereof as the executors named in such will might have had. Unless the contrary clearly appears by the terms of the will, it shall be presumed that the power or trust imposed is not a personal trust or confidence.(Code 1852, §1339; Code 1867, §1609; Code 1876, §2218; Code 1886, §1864; Code 1896, §1060; Code 1907, §3437; Code 1923, §6942; Code 1940, T. 47, §90.)Section 35-4-304 Section 35-4-304Execution of power by surviving donee.
When a power is vested in several persons and, previous to the execution, one or more of such persons dies, it may be executed by the survivor or survivors.(Code 1852, §1340; Code 1867, §1610; Code 1876, §2219; Code 1886, §1865; Code 1896, §1061; Code 1907, §3438; Code 1923, §6943; Code 1940, T. 47, §91.)Section 35-4-305 Section 35-4-305Special and beneficial powers liable to claims of creditors.
Every special and beneficial power is liable to the claims of creditors, and the execution of the same may be ordered for their benefit.(Code 1852, §1341; Code 1867, §1611; Code 1876, §2220; Code 1886, §1866; Code 1896, §1062; Code 1907, §3439; Code 1923, §6944; Code 1940, T. 47, §92.)Section 35-4-306 Section 35-4-306Article not extended to simple power of attorney.
The provisions of this article in relation to powers do not extend to a simple power of attorney to convey lands in the name and for the benefit of the owner.(Code 1852, §1342; Code 1867, §1612; Code 1876, §2221; Code 1886, §1867; Code 1896, §1063; Code 1907, §3440; Code 1923, §6945; Code 1940, T. 47, §93.)Section 35-4-320 Section 35-4-320Personal representative authorized to make conveyance.
In all cases of written agreements or contracts for the conveyance of lands in this state, where the person executing the same dies before the execution of the conveyance, the personal representative of such person may execute such conveyance according to the forms prescribed by law for the conveyance of real estate to the person to whom such agreement or contract was made, his heirs or assigns.(Code 1852, §1345; Code 1867, §1615; Code 1876, §2224; Code 1886, §1871; Code 1896, §1069; Code 1907, §3441; Code 1923, §6946; Code 1940, T. 47, §36.)Section 35-4-321 Section 35-4-321Application to compel conveyance - Generally.
If the personal representative refuses to execute the conveyance in the case provided for in section 35-4-320, he may be compelled so to do by application to the judge of probate of the county in which letters testamentary or of administration were granted.(Code 1852, §1346; Code 1867, §1616; Code, 1876, §2225; Code 1886, §1872; Code 1896, §1070; Code 1907, §3442; Code 1923, §6947; Code 1940, T. 47, §37.)Section 35-4-322 Section 35-4-322Application to compel conveyance - Contents; notice generally; decree; appeals.
Such application must be by petition, setting out the contract or agreement, the lands to be conveyed and stating the names of the heirs and personal representatives of the contracting party, which of them are of full age and which are minors; and the judge of probate must give notice of such petition by 20 days' written notice to the personal representative and resident heirs of the contracting party, to be served by any sheriff and, if any one or more are nonresidents, by publication in some newspaper published in his county and in the county in which the lands lie; or, if none is published therein, the paper published in the place nearest to the county site of such county, once a week for three successive weeks; and if, on the hearing of such application, it appears that such agreement or contract was fairly made and the consideration or conditions of the same paid or performed, such judge must decree the conveyance to be executed by the personal representative of the party so contracting, according to the terms thereof; and such personal representative, failing to execute such conveyance in conformity with such decree, must be imprisoned until he executes the same; either party having the right to appeal as on other final judgments and decrees of the probate court.(Code 1852, §1347; Code 1867, §1617; Code 1876, §2226; Code 1886, §1873; Code 1896, §1071; Code 1907, §3443; Code 1923, §6948; Code 1940, T. 47, §38.)Section 35-4-323 Section 35-4-323Application to compel conveyance - Notice to guardians of minor heirs.
In all cases in which minor heirs are interested in such application, notice thereof must be given to the guardian; and, if there is no guardian, the judge must appoint a guardian ad litem to protect their interest.(Code 1852, §1348; Code 1867, §1618; Code 1876, §2227; Code 1886, §1874; Code 1896, §1072; Code 1907, §3444; Code 1923, §6949; Code 1940, T. 47, §39.)Section 35-4-340 Section 35-4-340Who may convey title.
A majority of the trustees or any other authorized agent of any literary society, social society, Young Men's Christian Association or Young Women's Christian Association may convey the title to all or any part of the real estate belonging to it by deed executed by a majority of the trustees or by any other authorized agent.(Acts 1923, No. 374, p. 397; Code 1923, §6950; Code 1940, T. 47, §40.)Section 35-4-341 Section 35-4-341Meeting of trustees; execution of deed.
(a) Before such deed may be executed, a majority of the board of trustees of the literary society, social society, Young Men's Christian Association or Young Women's Christian Association shall first recommend the execution of said deed and submit the proposition to a called meeting of the adult members of such literary society, social society, Young Men's Christian Association or Young Women's Christian Association, such meeting to be assembled after 10 days' notice of the time, place and object of such meeting, posted at the usual place of assembly and published by notice signed by a majority of such trustees in some newpaper published in the county where such literary society, social society, Young Men's Christian Association or Young Women's Christian Association is situated or has its principal office; and, if a majority of the adult members present at such meeting shall vote in favor of the proposition, then a majority of the board of trustees or such agent as may be designated at such meeting shall execute a deed conveying the title to the real estate which they are authorized by such meeting to convey.
(b) A certified copy of the minutes of such meeting shall be prima facie evidence of the authority of the trustees or such other agent as may have been designated at such meeting to execute said conveyance and that a majority of the adult members were present at such meeting. Said certified copy must be made by the secretary of said meeting and attested by the chairman as a true copy, and acknowledged by them to be a true copy before some officer authorized to take acknowledgments, and said copy may be recorded in the office of the judge of probate of the county where the property is situated and, when recorded, shall be notice of the matters therein set forth and prima facie evidence thereof.(Acts 1923, No. 374, p. 397; Code 1923, §§6951, 6952; Code 1940, T. 47, §§41, 42.)Section 35-4-342 Section 35-4-342Property subject to provisions of article.
The provisions of this article shall apply to the conveyance of real estate heretofore acquired or that may be hereafter acquired by such literary society, social society, Young Men's Christian Association, or Young Women's Christian Association.(Acts 1923, No. 374, p. 397; Code 1923, §6953; Code 1940, T. 47, §43.)Section 35-4-343 Section 35-4-343Vendor's lien, etc.
Nothing in this article shall prevent any literary society, social society, Young Men's Christian Association or Young Women's Christian Association from retaining a vendor's lien on the property conveyed, nor from taking a mortgage to secure the balance of the purchase money nor from making an agreement as to the payment of the purchase money and the conditions of the sale.(Acts 1923, No. 374, p. 397; Code 1923, §6953; Code 1940, T. 47, §43.)Section 35-4-344 Section 35-4-344Article not exclusive.
This article shall not be construed as prescribing the exclusive way in which any literary society, social society, Young Men's Christian Association or Young Women's Christian Association may convey their real estate or the manner in which they may execute conveyances.(Acts 1923, No. 374, p. 397; Code 1923, §6953; Code 1940, T. 47, §45.)Section 35-4-360 Section 35-4-360Time for cutting and removal of timber.
(a) In all conveyances of standing timber by deed or other instrument, wherein no provision is made as to when the grantee shall cut and remove the timber, the grantee shall have 10 years in which to do so.
(b) In all conveyances of standing timber by deed or other instrument wherein it is stipulated that the grantee is to have a reasonable time in which to cut and remove the timber, 10 years shall be deemed a reasonable time.(Acts 1919, No. 580, p. 836; Code 1923, §§6956, 6957; Code 1940, T. 47, §§46, 47.)Section 35-4-361 Section 35-4-361Right-of-way over timberlands.
In all conveyances of standing timber, by deed or other instrument, containing no stipulation as to a right-of-way over and across the lands on which the timber is situated, the grantee shall have a free right-of-way over and across said lands for the purpose of cutting and removing the timber, provided he does not injure any crops growing thereon or do any unnecessary damage to the lands or timber not included in the contract.(Acts 1919, No. 580, p. 836; Code 1923, §6958; Code 1940, T. 47, §48.)Section 35-4-362 Section 35-4-362Reversion of title to uncut timber.
In all conveyances of standing timber, by deed or other instrument, unless otherwise provided in said deed or other instrument, the title to all timber not cut and removed within 10 years from the date of the deed or other instrument conveying the same, or at the expiration of the time limit agreed upon by the parties, shall revert to the grantor or grantors.(Acts 1919, No. 580, p. 836; Code 1923, §6959; Code 1940, T. 47, §49.)Section 35-4-363 Section 35-4-363When standing timber and trees, etc., deemed chattels.
All standing timber and trees, and cutting rights with respect thereto, while owned by or mortgaged to anyone other than the owner of the land upon which such timber or trees are located, under or by virtue of any conveyance, mortgage or other instrument executed hereafter by the owner or owners of the entire fee simple title to the timber or trees or by the owner or owners of the full cutting rights with respect thereto shall be and shall be considered as chattels and not real property, or any interest therein, in all instances where the right or obligation to cut and remove such timber or trees is limited to a period not exceeding 10 years from the date of the conveyance, mortgage or other instrument transferring such timber or trees, or rights with respect thereto.(Acts 1951, No. 575, p. 1027.)Section 35-4-380 Section 35-4-380Lease of salt springs, etc.
(a) The commissioner of conservation and natural resources by and with the approval of the governor may lease the salt springs and lands granted to the state under the second clause of the sixth section of the act of congress of March 2, 1819, to the best advantage, in conformity with the provisions of the grant or any amendment thereto, and may sell the timber on said lands or any part thereof whenever he shall deem it to the best interest of the state to do so.
(b) The commissioner of conservation and natural resources, by and with the approval of the governor, on behalf of the state, is hereby authorized to lease upon such terms as he may approve, the lands granted to the state under the second clause of the sixth section of the act of congress of March 2, 1819, or any right or interest therein for the purpose of exploring for and mining or producing therefrom oil, gas or other minerals.
(c) If oil, gas or other minerals or products are mined, produced or taken from any of the lands mentioned in subsection (a) hereof, the state's share of such production which may accrue to it under the terms of the leases authorized in this article may be taken in kind and sold on such terms as the commissioner of conservation and natural resources may deem to be to the best interest of the state, which delivery in kind and sale shall be approved in writing by the governor.(Code 1852, §549; Code 1867, §621; Code 1876, §526; Code 1886, §639; Code 1896, §2695; Code 1907, §883; Acts 1919, No. 28, p. 29; Code 1923, §1494; Code 1940, T. 47, §50; Acts 1945, No. 223, p. 348.)Section 35-4-381 Section 35-4-381Sale of right to quarry limestone and clay.
The governor may sell the right to quarry limestone and clays necessary or proper for the manufacture of cement upon the following lands: Sections 21 and 28, township 5 N., range 2 E., or any part thereof. He may sell the said rights for such price and upon such terms as to him appear just and reasonable. The sale of such rights shall confer upon the purchaser landing privileges, all necessary rights-of-way for the purpose of quarrying the material and moving the same, and all rights and privileges which are necessary for the enjoyment of the rights granted; but the state shall retain possession of the lands and have the right to the use and enjoyment thereof for every other purpose whatever.(Code 1907, §884; Code 1923, §1495; Code 1940, T. 47, §51.)Section 35-4-382 Section 35-4-382Validity of conveyances by state agencies.
All conveyances of real estate made by any department, commission or other agency of the state, when the legal title to any property is vested in any department, commission or other agency of the state, shall be invalid and void unless approved in writing by the governor on the face of such conveyance.(Acts 1931, No. 563, p. 663; Code 1940, T. 47, §54.)Section 35-4-383 Section 35-4-383Validity of leases, etc., by state agencies.
(a) All leases, contracts of exchange or other dispositions of real estate for more than one year made by any department, commission or other agency of the state of Alabama shall be invalid and void unless approved in writing by the governor on the face thereof.
(b) The governor, on behalf of the state, is hereby authorized to lease, upon such terms as he may approve, any lands or interest therein owned by the state, including lands or any right or interest therein under any navigable stream or navigable waters, bays, estuaries, lagoons, bayous or lakes, and the shores along any navigable waters to ordinary high-tide mark, and lands under navigable waters within the three-mile limit from the shore line of any county or counties in Alabama for the exploration, development and production of oil, gas and other minerals, or any one or more of them, on, in and under such lands. Any lease executed under the provisions of this section may authorize the lessee to pool or unitize the lease, the lands or minerals covered thereby, or any part thereof, with other lands, leases or mineral estates, or parts thereof, upon such terms as the governor may approve.
(c) The governor is hereby authorized to execute upon such terms as he may approve:
(1) Pooling or unitization agreements affecting oil, gas and other minerals, or any one or more of them, on, in and under lands owned by the state of Alabama so as to pool or unitize such interests in oil, gas and other minerals, or any one or more of them, with similar interests in other lands; and
(2) Agreements amending existing leases so as to authorize the lessee to pool or unitize the lease, the lands or minerals covered thereby, or any part thereof, with other leases, lands or mineral estates or parts thereof.(Acts 1931, No. 563, p. 663; Code 1940, T. 47, §55; Acts 1951, No. 639, p. 1094, §1.)Section 35-4-384 Section 35-4-384Sale of contingent interests by state institutions.
Any state institution including schools, colleges or other educational institutions which may own or be entitled to any contingent interest in any real estate situated in the state of Alabama, whether such interest is derived through a will or otherwise, is hereby authorized to sell or otherwise dispose of such contingent interest upon such terms and for such price as the managing head of such institution may deem fair and just; provided, that such sale shall be approved by the executive committee of the board of trustees, of such institution, if such institution has a board of trustees; provided further, that in the event such institution shall not have a board of trustees or there shall not be in existence an executive committee of such board of trustees, then such sale or disposition shall be approved by the governor and the attorney general. In the event of any such sale or disposition of any such interest, such institution is hereby authorized and empowered to execute to the purchaser a conveyance or conveyances of such interest sold or disposed of, and the said conveyance or conveyances shall be executed in the name of such institution by the presiding officer of its board of trustees, or in the name of the state of Alabama, by the governor of Alabama; and the execution of the same shall be attested by the secretary of such board of trustees in the event the same is executed by the presiding officer of such board of trustees; or in the event that such conveyance is executed by the governor, the same shall be attested by the secretary of state, and the seal of the state of Alabama shall be affixed thereto.(Acts 1927, No. 29, p. 32; Code 1940, T. 47, §56.)Section 35-4-385 Section 35-4-385Conveyance of lands owned by the state.
When any department of the state, having power and authority to obtain and negotiate a sale of any lands claimed or owned by the state, shall certify to the governor that such sale has been obtained and negotiated, that all requirements of law with respect to such sale have been complied with and such sale is concurred in by the governor, the governor may cause a patent to issue under the seal of the state, signed by the governor and attested by the secretary of state, conveying such property. The recitals contained in said conveyance shall be conclusive evidence that all requirements for the issuance thereof have been complied with.(Code 1852, §1350; Code 1867, §1620; Code 1876, §2228; Code 1886, §1875; Code 1896, §2699; Code 1907, §888; Code 1923, §1498; Code 1940, T. 47, §57.)Section 35-4-386 Section 35-4-386Patent to decedent vests title in his successors.
Where patents for public lands have been or may be issued pursuant to any law of the state of Alabama to a person who has died before the date of such patent, the title to the land designated therein shall enure to and become vested in the heirs, devisees or those who have succeeded to the interest of such deceased patentee as if the patent had issued to the deceased person during life.(Acts 1961, No. 891, p. 1405.)Section 35-4-387 Section 35-4-387Recordation of patents.
The secretary of state must record, in well-bound books, all grants and patents issued by the state.(Code 1852, §1351; Code 1867, §1621; Code 1876, §2229; Code 1886, §1876; Code 1896, §2700; Code 1907, §889; Code 1923, §1499; Code 1940, T. 47, §58.)Section 35-4-388 Section 35-4-388When purchaser entitled to receive patent.
All purchasers of real property belonging to this state, their heirs and assigns, except in cases otherwise provided by this Code, are entitled to receive a patent therefor on producing to the secretary of state a certificate signed by the state treasurer that the amount due for such real estate has been paid into the state treasury.(Code 1852, §1352; Code 1867, §1622; Code 1876, §2230; Code 1886, §1877; Code 1896, §2701; Code 1907, §890; Code 1923, §1500; Code 1940, T. 47, §59.)Section 35-4-389 Section 35-4-389Patents for swamp and overflowed lands.
The governor may issue patents to the purchasers of swamp and overflowed lands or lands in lieu of swamp and overflowed lands which were made prior to October 10, 1903, and which may have been patented to this state, or which may hereafter be so patented, upon satisfactory proof being made to him that such lands have been fully paid for in money or in scrip sold and transferred by him and authorized by the acts of congress to be received in payment for such lands.(Code 1896, §2702; Code 1907, §891; Code 1923, §1501; Code 1940, T. 47, §60.)Section 35-4-390 Section 35-4-390Prior conveyances ratified and confirmed.
All conveyances of land owned or claimed by the state made by the governor in the name of the state prior to August 17, 1924, are hereby ratified and confirmed as valid conveyances of such lands to the purchasers or grantees thereof.(Acts 1923, No. 44, p. 26; Code 1923, §6852; Code 1940, T. 47, §61.)Section 35-4-391 Section 35-4-391Conveyances in cases of lost deeds or adverse possession.
When it is made to appear to the satisfaction of the attorney general, by the owner or claimant of any land owned or claimed by the state, that such land has been previously conveyed by the state, and the original conveyance or a duly certified copy thereof cannot be located or obtained, or that the state has lost its interest in such land by adverse possession, a conveyance may be executed to the purchaser, owner or claimant in the manner authorized in section 35-4-385.(Code 1923, §6851; Acts 1931, No. 592, p. 674; Code 1940, T. 47, §62.)Section 35-4-393 Section 35-4-393Settlement of dispute as to certain property in Mobile county conveyed to University of South Alabama Foundation by University of South Alabama.
(a) WHEREAS, on December 13, 1982, the state issued to the university a patent to certain lands in Mobile county, herein called 'the patent,' covering the following described property in Mobile county, Alabama, to wit:
Beginning at Alabama West Zone Coordinates Y = 118,606.82; X = 296,291.22 which point is on or near the intersection of the North line of Section 26, Township 8 South, Range 2 West and the East Shore line of Heron Bay, thence run North 77 degrees 54 minutes 52 seconds West a distance of 3883.84 feet to a point on the South shore line of Mon Louis Island, (Y = 119,419.98; X = 292,493.47) thence run due South a distance of 20,071.04 feet to coordinates Y = 99,348.94; X = 292,493.47 which point is in the Mississippi Sound, thence run North 79 degrees - 40 minutes - 28 seconds East a distance of 7805.85 feet to coordinates Y = 100,748.05; X = 300,172.90 which point is in the Mississippi Sound, thence run North 26 degrees - 35 minutes - 34 seconds East a distance of 4,273.18 feet to coordinates Y = 104,569.17; X = 302,085.78 which point is on the center line of Dauphin Island Bridge (Alabama Highway No. 163) at station 106 + 53.04, thence run South 67 degrees - 50 minutes - 12 seconds East a distance of 2358.05 feet to point No. L-D-3 as shown on the plat of Harbor Lines, Dauphin Island and Little Dauphin Island as recorded in Real Property Book 617, Page 610, in the Office of the Judge of Probate of Mobile County, Alabama, thence run South 53 degrees - 14 minutes - 12 seconds East along the Harbor Line of Little Dauphin Island a distance of 12,522.99 feet to coordinates Y = 96,184.54; X = 314,302.02 which point is in Mobile Bay, thence run due North a distance of 8815.46 feet to coordinates Y = 105,000.00; X = 314, 302.02 which point is in Mobile Bay, thence run due West a distance of 7151.01 feet to coordinates Y = 105,000.00; X = 307,151.01 which point is in Mobile Bay, thence run due North a distance of 15,000.00 feet to coordinates Y = 120,000.00; X = 307,151.01, which point is in Mobile Bay, thence run due East a distance of 834.76 feet to coordinates Y = 120,000.00; X = 307,985.77, which point is in Mobile Bay, thence run due North a distance of 5945.61 feet to coordinates Y = 125,945.61; X = 307,985.77, which point is in Mobile Bay, thence run due West a distance of 4646.75 feet to a point on the West shore line of Mobile Bay and the East shore line of Mon Louis Island (Y = 125,945.61; X = 303,339.02) thence run Southwestwardly along the meanders of said East shore line of Mon Louis Island to coordinates Y = 120,000.00; X = 300,000.00, (chord bears South 29 degrees - 19 minutes - 06 seconds West a distance of 6819.04 feet) thence continue Southwestwardly along the meanders of the East shore line of Mon Louis Island to coordinates Y = 113,374.12; X = 298,664.12, which point is on station 11 + 69 more or less on the Northwest corner of Dauphin Island Bridge at Cedar Point (Alabama Highway No. 163) (chord bears South 11 degrees 23 minutes 56 seconds West a distance of 6759.21 feet) thence run Northwestwardly along the meanders of the West shore line of Cedar Point (Mon Louis Island) to coordinates Y = 116,364.22; X = 296,862.69 (chord bears North 31 degrees - 04 minutes - 03 seconds West a distance of 3490.82 feet) thence continue Northwestwardly along the meanders of said Cedar Point (Mon Louis Island) to the point of beginning (Y = 118,606.82; X = 296,291.22) chord bears North 14 degrees - 17 minutes - 45 seconds West a distance of 2314.27 feet) containing 7,664 acres more or less
and which lands are hereinafter referred to as 'the subject property'; and
WHEREAS, by conveyance, the university on July 11, 1983, transferred and conveyed to the foundation all of its right, title, claim or interest in the subject property arising under the patent; and
WHEREAS, the legislature then passed an act attempting to void the patent; and
WHEREAS, the foundation then filed suit to have that act declared void as unconstitutional under the United States and Alabama Constitutions; and
WHEREAS, the state has heretofore disputed the validity of the patent, and, by reason of such dispute, the university and the foundation have heretofore commenced certain legal proceedings seeking to quiet title to the subject property in the foundation, and seeking other relief, which proceedings are presently pending in the supreme court of Alabama as Case No. 83-1405, and in the United States District Court for the Southern District of Alabama, Southern Division, as Cases Nos. 83-1218-H and 83-1397-H, all of which are herein sometimes called the 'pending cases'; and
WHEREAS, on June 11, 1984, the circuit court of Montgomery county, Alabama entered a judgment in Case No. CV 83-1242 declaring the patent to be null and void; and
WHEREAS, the foundation within the time permitted by law filed an appeal from the said judgment in the circuit court of Montgomery county to the supreme court of Alabama which such appeal (Case No. 83-1405) is presently pending before and unresolved by the supreme court of Alabama; and
WHEREAS, the foundation continues to claim that it is the owner of certain property rights or interests in the subject property arising from the patent, and the state continues to claim that the patent is void and of no effect; and
WHEREAS, the state has acknowledged that the decisions which may result from the said appeal, now pending before the supreme court of Alabama and from the two actions presently pending in the United States District Court for the Southern District of Alabama, above described, cannot presently be predicted with certainty; and
WHEREAS, the university and the foundation wish to make provision for the conclusion of all litigation relating to the validity of the patent and other issues surrounding the subject property, and to resolve all disputes relating thereto and, at the earliest possible date, to make the subject property available for leasing for the purpose of exploration for and production of oil, gas and hydrocarbon minerals:
It is the intent of the legislature by the adoption of this section that the state of Alabama, by and through the governor of the state, shall forthwith conclude by settlement all pending litigation between and among the state of Alabama, the University of South Alabama, and the University of South Alabama Foundation, and all issues related thereto.
(b) As an inducement to such settlement, the University of South Alabama Foundation may be allowed to retain such a right in the subject property as will authorize it to receive, directly from any lessee thereof, a percentage of the proceeds or revenues from oil, gas or other hydrocarbon mineral leases, bonuses, delay rentals and royalties, which may arise from or be generated by the subject property.
(c) The governor of the state of Alabama is hereby authorized and empowered to take all steps on behalf of the state of Alabama to conclude by settlement all pending cases involving directly or indirectly the validity of the patent, wherein the University of South Alabama, and the University of South Alabama Foundation are parties litigant, provided, however, (1) that in no case shall the foundation be allowed to retain a right in the said oil, gas or other hydrocarbon mineral proceeds or revenues from the subject property in excess of a net of 28.5 percent, and (2) that upon such settlement, all right, title, claim or interest in and to the subject property, under the patent, except the right herein authorized to be retained by the Foundation, shall be transferred and conveyed by the University of South Alabama and the University of South Alabama Foundation to the state of Alabama.(Acts 1985, 2nd Ex. Sess., No. 85-795, p. 39.)Section 35-4-410 Section 35-4-410Authorization to alienate public recreational facilities and housing projects.
The governing bodies of counties, cities, towns and other subdivisions of the state shall have full power and authority to alienate public parks and playgrounds, other public recreational facilities and public housing projects on such terms as may be agreeable to them, provided such alienation is first approved by a majority of the qualified electors of the county, city, town or subdivision affected thereby voting in a referendum election held for such purpose.(Acts 1956, 2nd Ex. Sess., No. 103, p. 425, §1.)Section 35-4-411 Section 35-4-411Ordinance or resolution describing proposed conveyance.
When the county commission, or the council or like governing body of a city or town, or governing body of any other subdivision determines to alienate any public improvement described in Section 35-4-410, it shall adopt a resolution or ordinance to that effect, describing the nature and extent of the proposed conveyance and the minimum consideration therefor, if any. The ordinance or resolution shall be published once a week for four consecutive weeks in some newspaper published in the county, city, or town, and, if no newspaper is published therein, it may be published in a newspaper having general circulation in the county, city, or town.(Acts 1956, 2nd Ex. Sess., No. 103, p. 425, §2; Acts 1994, No. 94-480, p. 797, §1.)Section 35-4-412 Section 35-4-412Referendum election.
The county or municipal governing body shall provide for a referendum election to be held on the proposal made in the resolution or ordinance, and the resolution or ordinance shall be effective only in the event the proposal is approved by a majority of the qualified electors of the county, city, town or other subdivision affected thereby voting in such referendum election.(Acts 1956, 2nd Ex. Sess., No. 103, p. 425, §3.)