Usa Alabama

USA Statutes : alabama
Title : Title 35 PROPERTY.
Chapter : Chapter 06 PARTITION.
Section 35-6-1 Section 35-6-1Deposit of unclaimed money in county treasury; payment upon order of court.

(a) When a sale of premises is made, and no person appears to claim such portion of the money as may belong to any nonresident or person whose name is unknown, the court shall require such money to be deposited in the county treasury, subject to the further order of the court. All money so required to be deposited shall be received by the county treasurer and paid upon the order of the court.

(b) When money is deposited in the county treasury under the provisions of this chapter, the person or persons entitled to the same may, at any time, apply to the court making the order of sale, and obtain an order for the same upon making satisfactory proof to the court of his or her right thereto.

(Code 1923, §§9336, 9337; Code 1940, T. 47, §§184, 185.)Section 35-6-20 Section 35-6-20Jurisdiction of circuit court to divide or sell for division.

The circuit court shall have original jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common; whether the defendant denies the title of plaintiff or sets up adverse possession or not; and the court in exercising its jurisdiction shall proceed according to the Alabama Rules of Civil procedure and, where necessary, allow service of process by publication as prescribed therein.

(Code 1886, §3262; Code 1896, §3187; Code 1907, §5231; Acts 1909, No. 123, p. 124; Code 1923, §9331; Code 1940, T. 47, §186.)Section 35-6-21 Section 35-6-21Interpleader.

During the pendency of any civil action for partition, any person claiming to be interested in the premises to be assigned or aparted may appear and answer the complaint, and assert his or her rights, by way of interpleader; and the court shall decide upon the rights of all persons appearing as aforesaid, as though they had been made parties in the first instance.

(Code 1923, §9332; Code 1940, T. 47, §187.)Section 35-6-22 Section 35-6-22Duty of court to declare rights of parties.

The court shall ascertain and declare the rights, titles and interest of all the parties to such action, the plaintiffs as well as the defendants, and shall give judgment according to the rights of the parties.

(Code 1923, §9333; Code 1940, T. 47, §188.)Section 35-6-23 Section 35-6-23Determination of questions of title and adjustment of equities.

(a) If the title of the plaintiffs seeking partition or sale of lands for a division shall be controverted, or should the title or claim of any of the parties to the action be adverse to that of one or more of the other parties, the question of title shall be tried and determined in the action by the circuit court, which shall have power to determine all questions of title, and to remove all clouds upon the title, if any, of the lands, whereof partition is sought and to apportion incumbrances, if partition be made of land incumbered and it be deemed proper to do so; and the court may adjust the equities between and determine all claims of the several cotenants or claimants as well as the equities and claims of the incumbrancers; and may adjust, settle and determine all questions as to dower or curtesy as if separate proceedings had been brought to settle and determine these questions.

(b) In actions for partition of lands, either by metes and bounds or by sale for division when the same cannot be equitably partitioned among the owners, if the defendant denies the title of the plaintiff or asserts an adverse claim or title in himself, the circuit judge need not dismiss the complaint, but may direct the issue as to the title of the complainant, or as to such adverse claim or title of the defendant, to be tried as other issues of fact are triable.

(Code 1867, §3466; Code 1876, §3893; Code 1886, §3588; Code 1896, §828; Code 1907, §§3205, 5232; Acts 1920, No. 122, p. 164; Code 1923, §§6635, 9334; Code 1940, T. 47, §§189, 119.)Section 35-6-24 Section 35-6-24Partition without commissioners; owelty.

If, at the hearing, it appears that the intervention of commissioners is unnecessary to secure an equal partition in kind, or that the same can be effected by providing owelty, and that it would best promote the interest of the parties, the circuit court may order the partition and fix the amount to be paid by one or several cotenants to another or others; or this may be done on hearing the report of the commissioners.

(Code 1907, §5233; Code 1923, §9335; Code 1940, T. 47, §190.)Section 35-6-25 Section 35-6-25Service of process on certain parties defendant; guardian ad litem; judgment not affected by death of defendant; section cumulative.

(a) When it is necessary to make any person a party defendant in any partition proceedings brought under the provisions of this article for partition sale of land, or any interest therein and the plaintiff, after exercising reasonable diligence, is unable to locate the whereabouts, and to ascertain whether any such defendant is alive at the time of the filing of the complaint, the facts showing just what diligence the plaintiff has exercised must be specifically alleged in the complaint, and such defendant may then be made a party, by publication as in the case of unknown defendants, in his name followed by the words: ' ____ and his heirs or devisees, if deceased.' If the defendant so sued does not appear in person or by attorney before expiration of the time for filing pleadings in the case, the court shall appoint a guardian ad litem to represent his interest. A valid judgment may be entered against such defendant, binding on both him and his heirs or devisees, regardless of whether it be later shown that such defendant was or was not living at the time of the filing of the complaint.

(b) This section is cumulative.

(Acts 1965, 2nd Ex. Sess., No. 100, p. 133.)Section 35-6-40 Section 35-6-40Property subject to partition; by whom application made.

Any property, real, personal or mixed, held by joint owners or tenants in common, may be divided among them, on the written application of one or more of them to the probate court of the county in which the property is situated; and such application may be made by the executor or administrator of a deceased person in interest, or by the guardian of a minor or person of unsound mind.

(Code 1852, §2677; Code 1867, §3105; Code 1876, §3497; Code 1886, §3237; Code 1896, §3161; Code 1907, §5203; Code 1923, §9303; Code 1940, T. 47, §192.)Section 35-6-41 Section 35-6-41Partition of land lying partly in different counties.

When partition is sought of a tract of land lying partly in different counties, the application may be made to the probate court of either county, and the partition shall be made at the courthouse of the county of the judge of such court; and when made, the judge of such court shall, on demand and payment of lawful fees therefor, furnish to each party in interest a certificate, under his official seal, of the lots or parcels allotted to him, and the book and page where the proceedings are recorded; and the record of such certificate in the proper office of the county in which such lots or parcels, or any part thereof, lie, shall operate as notice of its contents.

(Code 1876, §§3499, 3500; Code 1886, §3238; Code 1896, §3162; Code 1907, §5204; Code 1923, §9304; Code 1940, T. 47, §193.)Section 35-6-42 Section 35-6-42Contents of application.

The application for division or partition must set forth the names of all the persons interested in the property, their residence, if known, whether they are over or under 19 years of age, a full and accurate description of the property sought to be divided or partitioned, the interest of each person in the same, and the number of shares into which it is to be divided.

(Code 1852, §2678; Code 1867, §3106; Code 1876, §3498; Code 1886, §3239; Code 1896, §3163; Code 1907, §5205; Code 1923, §9305; Code 1940, T. 47, §194.)Section 35-6-43 Section 35-6-43Time and place of hearing; notice; guardians ad litem; nonresidents as parties.

Upon the filing of the application, a day not less than 30 days thereafter must be appointed for hearing the same; and of the time and place of such hearing, all parties in interest must have at least 10 days' notice; and when infants or persons of unsound mind are parties, if they have no general guardians, guardians ad litem must be appointed to represent them; and if any of the parties in interest are nonresidents, they must be made parties in the same manner, and to the same extent, as is done when property in the hands of an executor or administrator is to be divided or distributed.

(Code 1867, §3107; Code 1876, §3501; Code 1886, §3240; Code 1896, §3164; Code 1907, §5206; Code 1923, §9306; Code 1940, T. 47, §195.)Section 35-6-44 Section 35-6-44Proceedings against unknown persons and certain other parties defendant.

When it is necessary to make any persons defendant to a petition in the probate court filed for the partition of property or for a sale thereof because it cannot be equitably divided, and the names of all or any of such persons are unknown to the petitioner and cannot be ascertained on diligent inquiry, if the petitioner shall state in a petition, or in an affidavit thereto annexed, that the names of such persons are unknown, and that he has made diligent inquiry to ascertain the same, proceedings may be had against them without naming them; and the judge of probate must make publication as in case of nonresident defendants, describing such unknown parties as near as may be by the character in which they are sued, and with reference to their title or interest in the property sought to be partitioned or to be sold for division of the proceeds. Should petitioner, after exercising reasonable diligence be unable to locate the whereabouts, and to ascertain with certainty whether any defendant is alive at the time of the filing of the petition, the facts showing just what diligence the petitioner has exercised must be specifically alleged in the bill, and such defendant may then be made a party, by publication as in case of unknown defendants, in his name followed by the words: ' ____ and his heirs or devisees, if deceased.' If the defendant so named does not appear in person or by attorney before expiration of the time for filing pleadings, the court shall appoint a guardian ad litem to represent his interest. The shares or interest of such parties in the proceeds of any such sale shall be paid in the court under such directions as may be ordered by the court, and shall there be retained and paid out to the proper parties when ascertained.

(Code 1896, §3165; Code 1907, §5207; Code 1923, §9307; Code 1940, T. 47, §196; Acts 1965, 2nd Ex. Sess., No. 63, p. 89.)Section 35-6-45 Section 35-6-45Decree for partition; appointment of commissioners; minors' interests considered.

If, upon the hearing, the court is satisfied from the proof that the property described in the application is held and owned jointly, or in common, it must decree the same to be divided or partitioned among the joint owners or tenants in common, according to their respective interests therein; and to effect such division or partition, it must appoint suitable commissioners, not more than five, any three of whom may act; but if the application is for the partition of lands, and any of the parties interested are minors, the court, before granting the application, must be satisfied by evidence taken as in actions before the circuit court that it is to the interest of such minors that the partition be made.

(Code 1867, §3108; Code 1876, §3502; Code 1886, §3241; Code 1896, §3166; Code 1907, §5208; Code 1923, §9308, Code 1940, T. 47, §197.)Section 35-6-46 Section 35-6-46Oath of commissioners; duties generally.

The commissioners must be sworn faithfully to execute the trust reposed in them, and to make the division or partition fairly and impartially, if the same can be made; and the division or partition shall be conducted in all respects, as nearly as may be, consistently with the provisions of this article, as is done when property in the hands of an executor or administrator is to be distributed or divided; and in case of application for partition of lands, the commissioner must, after examining the lands, and a survey thereof, if necessary, proceed without delay to make division thereof into the necessary number of shares, having regard to the quality of the soil, and other advantages, so as to make the different shares as nearly equal in value as practicable; and they must make a plat and map thereof, showing the subdivisions of the lots, and numbering them progressively; and subdivisions and boundaries of the lots, and numbering them progressively; and they are authorized to employ a surveyor and chain bearers and other attendants, if necessary.

(Code 1852, §2681; Code 1867, §3109; Code 1876, §3503; Code 1886, §3242; Code 1896, §3167; Code 1907, §5209; Code 1923, §9309; Code 1940, T. 47, §198.)Section 35-6-47 Section 35-6-47Notice of partition.

In case of partition of lands, the commissioners must give notice, by publication in some newspaper published in the county, if there is one, or if not, in the one nearest thereto, to be made not less than three successive weeks, that they will, on a day designated, attend at the courthouse of the county to make partition.

(Code 1852, §2682; Code 1867, §3110; Code 1876, §3504; Code 1886, §3243; Code 1896, §3168; Code 1907, §5210; Code 1923, §9310; Code 1940, T. 47, §199.)Section 35-6-48 Section 35-6-48Determination and statement by commissioners.

On the day designated, the commissioners must, in the presence of the judge of probate, determine by lot to whom each of the several parcels belongs, and make a statement in writing of the result, setting forth to whom the several parcels or lots were allotted, together with all the facts relating to the partition and allotment, which must be signed by them, and attested by the judge of probate.

(Code 1852, §2683; Code 1867, §3111; Code 1876, §3505; Code 1886, §3244; Code 1896, §3169; Code 1907, §5211; Code 1923, §9311; Code 1940, T. 47, §200.)Section 35-6-49 Section 35-6-49Filing and recordation of application, etc.; record as evidence.

The application, commission, statement of the commissioners and plat and map must be filed in the office of the judge of probate, and, together with all orders made by him, must be recorded in a book kept by him for the record of conveyances of land, and when recorded, the record thereof shall be presumptive evidence of the truth of any fact therein stated.

(Code 1852, §2684; Code 1867, §3112; Code 1876, §3506; Code 1886, §3245; Code 1896, §3170; Code 1907, §5213; Code 1923, §9313; Code 1940, T. 47, §202.)Section 35-6-50 Section 35-6-50Partition vests title; annulment by circuit court.

The partition so made vests a title in fee simple in the persons to whom the several shares are allotted, as fully and completely as if each had conveyed to the others; but if any fraud or undue influence be employed by any of the parties to obtain an unfair partition or allotment, such partition may be annulled by the circuit court, on a complaint filed within five years after the allotment.

(Code 1852, §2685; Code 1867, §3113; Code 1876, §3507; Code 1886, §3246; Code 1896, §3171; Code 1907, §5214; Code 1923, §9314; Code 1940, T. 47, §203.)Section 35-6-51 Section 35-6-51Effect of partition on liens.

When there is a lien on an undivided interest of any of the parties, such lien, if a partition is made, is thenceforth a charge only on the share assigned to such party; but such share must first be charged with its just proportion of the costs of the partition, in preference to such lien.

(Code 1852, §2686; Code 1867, §3114; Code 1876, §3508; Code 1886, §3247; Code 1896, §3172; Code 1907, §5215; Code 1923, §9315; Code 1940, T. 47, §204.)Section 35-6-52 Section 35-6-52Completion of partition by substitute commissioner.

If any of the commissioners die, resign or neglect or refuse to act, at any time before the final allotment, others may be substituted in their stead by the probate court, and they shall have the same power in completing such partition and allotment as if they had been originally appointed.

(Code 1852, §2687; Code 1867, §3115; Code 1876, §3509; Code 1886, §3248; Code 1896, §3173; Code 1907, §5216; Code 1923, §9316; Code 1940, T. 47, §205.)Section 35-6-53 Section 35-6-53Fees of commissioners.

The commissioners are entitled to $2.00 per day for each day while they are engaged in such partition and allotment, and all expenses they may have incurred in causing survey, map and plat to be made, or otherwise, in the discharge of their duties.

(Code 1852, §2688; Code 1867, §3116; Code 1876, §3510; Code 1886, §3249; Code 1896, §3174; Code 1907, §5217; Code 1923, §9317; Code 1940, T. 47, §206.)Section 35-6-54 Section 35-6-54Costs and expenses.

The probate court must ascertain the costs and expenses attending the division, and make a record thereof, stating distinctly each item of such costs and expenses; and if the same are not paid within 30 days after the allotment, an execution may be issued against each of the persons to whom the land was allotted, for his aliquot portion thereof, which must be directed to the sheriff, to be levied as other executions, and may be levied on the land so allotted to him.

(Code 1852, §2689; Code 1867, §3117; Code 1876, §3511; Code 1886, §3250; Code 1896, §3175; Code 1907, §5218; Code 1923, §9318; Code 1940, T. 47, §207.)Section 35-6-55 Section 35-6-55Partition not made when adverse claim or title asserted.

No division or partition or sale for distribution can be made under this article, in the probate court when an adverse claim or title is asserted by anyone, or brought to the knowledge of the commissioners, or of the judge of probate.

(Code 1852, §2690; Code 1867, §3118; Code 1876, §3512; Code 1886, §3251; Code 1896, §3176; Code 1907, §5220; Code 1923, §9320; Code 1940, T. 47, §208.)Section 35-6-56 Section 35-6-56Remedy not exclusive.

The power conferred in this article does not prevent a resort to any other lawful mode of obtaining partition of lands.

(Code 1852, §2691; Code 1867, §3119; Code 1876, §3513; Code 1886, §3252; Code 1896, §3177; Code 1907, §5221; Code 1923, §9321; Code 1940, T. 47, §209.)Section 35-6-57 Section 35-6-57Sale instead of partition - When sale ordered.

If, after a decree for partition and the appointment of commissioners it shall appear from the report of the commissioners, or on exceptions to their report, that a just and equal division of the land cannot be made, or that a sale will better promote the interest of all the cotenants, the court shall order a sale of the land, or such part thereof as may be deemed proper, and a division of the proceeds among those interested, as provided for, and make an equitable partition as provided in this article of the land not sold.

(Code 1907, §5212; Code 1923, §9312; Code 1940, T. 47, §201.)Section 35-6-58 Section 35-6-58Sale instead of partition - Property subject to sale; by whom application made; where sale held; record of decrees.

Any property, real or personal, held by joint owners or tenants in common, on the written application of any one or more of them, may be decreed to be sold by the probate court of the county in which such property is situated, or, in case of land lying in different counties, of either of such counties, whether such lands are adjacent or contiguous, when the same cannot be equitably divided or partitioned among them, notwithstanding they, or any of them, are infants or persons of unsound mind, and the application may be made by the executor or administrator of a deceased person in interest, or by the guardian of a minor or person of unsound mind. Such lands shall be sold in the county where the decree is rendered, unless otherwise directed by order of the court, upon rendition of the final decree ordering such sale. The decree of sale and the decree confirming the sale shall be recorded in all counties where any of the land is situate. A certified copy of such record of these decrees shall be admissible in and prima facie evidence of their contents in all the courts of this state.

(Code 1867, §3120; Code 1876, §3514; Code 1886, §3253; Code 1896, §3178; Code 1907, §5222; Acts 1923, No. 496, p. 659; Code 1923, §9322; Code 1940, T. 47, §210.)Section 35-6-59 Section 35-6-59Sale instead of partition - Time for hearing.

Upon the filing of such application, setting forth that the property cannot be equitably divided or partitioned, without a sale thereof, a day must be appointed, not less than 30 days thereafter for hearing the same.

(Code 1867, §3121; Code 1876, §3515; Code 1886, §3254; Code 1896, §3179; Code 1907, §5223; Code 1923, §9323; Code 1940, T. 47, §211.)Section 35-6-60 Section 35-6-60Sale instead of partition - Notice of hearing; guardians ad litem; nonresidents as parties.

All parties in interest must have at least 10 days' notice of the time and place set for the hearing of such application; and when infants or persons of unsound mind are parties, and have no general guardians, guardians ad litem must be appointed to represent them; and if any of the parties in interest are nonresidents, they may be made parties in the same manner, and to the same extent as is done when property in the hands of an executor or administrator is to be divided or distributed.

(Code 1867, §3122; Code 1876, §3516; Code 1886, §3255; Code 1896, §3180; Code 1907, §5224; Code 1923, §9324; Code 1940, T. 47, §212.)Section 35-6-61 Section 35-6-61Sale instead of partition - Evidence.

Evidence in support of such application must be taken as in actions before the circuit court, and before granting the decree of sale the probate court must be satisfied from the evidence that an equitable division or partition cannot be made; and when the application is by the guardian of an infant or person of unsound mind, the court must be satisfied from the evidence that it would be to the interest of such infant, or person of unsound mind, to sell the property for the purpose of division or partition.

(Code 1867, §3123; Code 1876, §3517; Code 1886, §3256; Code 1896, §3181; Code 1907, §5225; Code 1923, §9325; Code 1940, T. 47, §213.)Section 35-6-62 Section 35-6-62Sale instead of partition - Decree and orders; appointment of commissioner; conduct of sale.

If, upon the hearing, the court is satisfied from the proof that such property cannot be equitably divided or partitioned among the parties in interest, it must decree the same to be sold, and make and issue all such orders as may be necessary to effect the sale thereof, and appoint a suitable commissioner to make the sale; and the sale shall be conducted, the purchase money collected, conveyance of the title made and all proceedings subsequent to the sale conducted in every respect as is done when property in the hands of an executor or administrator is to be distributed.

(Code 1867, §3124; Code 1876, §3518; Code 1886, §3257; Code 1896, §3182; Code 1907, §5226; Code 1923, §9326; Code 1940, T. 47, §214.)Section 35-6-63 Section 35-6-63Sale instead of partition - Payment and distribution of purchase money.

Such commissioner may discharge himself from all liability for money received by him for the property sold, by paying over the same to the judge of probate, after deducting therefrom the costs and expenses attending the sale, including commissions to him at the same rate that executors or administrators receive for collecting, but in no case more than $100.00; and such net proceeds must be distributed by the judge of probate among the persons entitled thereto, according to their respective interests.

(Code 1867, §3125; Code 1876, §3519; Code 1886, §3258; Code 1896, §3183; Code 1907, §5227; Code 1923, §9327; Code 1940, T. 47, §215.)Section 35-6-64 Section 35-6-64Sale instead of partition - Completion of sale by substitute commissioner.

If the commissioner dies, resigns or neglects or refuses to act, at any time before the sale, another may be substituted in his stead by the court, who shall have the same power in completing the sale as if originally appointed.

(Code 1886, §3259; Code 1896, §3184; Code 1907, §5228; Code 1923, §9328; Code 1940, T. 47, §216.)Section 35-6-65 Section 35-6-65Article applicable to executors or administrators of deceased parties.

Should any of the parties interested in property, real or personal, held by joint owners or tenants in common, die, the provisions of this article shall fully apply to his executor or administrator.

(Code 1867, §3126; Code 1876, §3520; Code 1886, §3260; Code 1896, §3185; Code 1907, §5229; Code 1923, §9329; Code 1940, T. 47, §217.)Section 35-6-66 Section 35-6-66Article not applicable to partition of crops.

The provisions of this article are not applicable to the partition of crops.

(Code 1886, §3261; Code 1896, §3186; Code 1907, §5230; Code 1923, §9330; Code 1940, T. 47, §218.)Section 35-6-80 Section 35-6-80When and by whom sale made.

In all cases in which any person of unsound mind or any minor shall hold an interest as tenant in common with others in one or more parcels of land or realty in this state, and there shall be no valid authority to sell such interest vested in any person by the terms of any instrument under which such person of unsound mind or such minor holds such interest, and such sale shall not be prohibited or restricted by such instrument, it shall be lawful for the guardian of such minor or person of unsound mind to join the other tenants in common in selling any such parcel of land or realty for a division of proceeds thereof, such sale to be made either publicly or privately, and upon such terms as to payment and security for unpaid installments as such guardian may deem to the interest of his ward, subject, however, to such sale being set aside as provided in this article.

(Code 1907, §5253; Code 1923, §9357; Code 1940, T. 47, §219.)Section 35-6-81 Section 35-6-81Report of sale by guardian to court.

Within three months after making any such sale, such guardian shall report the same under oath to the court having jurisdiction of his administration of the estate of such ward. If the whole of the share of such ward in the proceeds of such sale shall have been paid when such report is made, such fact shall be stated therein, and the guardian shall therein apply to the court for authority to make a conveyance of the interest of said ward in the lands or realty so sold to the purchaser. Such report shall set forth the name, residence and age of such ward, and of the person in whose custody he is, and the name and residence of the adult next of kin of said ward, resident in the state and not interested in such sale; if there be more than one such next of kin of the same degree, such report must set forth the names and residences of all of them resident in this state.

(Code 1907, §5254; Code 1923, §9358; Code 1940, T. 47, §220.)Section 35-6-82 Section 35-6-82Time and notice of hearing.

Upon the filing of such report the court must appoint a day for the hearing of the same, not less than 20 days from the filing thereof, and must give notice thereof to any minor whose interest has been so sold who is over 14 years of age and resident in this state, and also to the person in whose custody such ward is, if deemed by the court in the interest of such ward, and also to the adult next of kin of such ward resident in this state, not interested in such sale, or where there is more than one such next of kin of equal degree, then to such one of them as may be selected by the court. Such notice shall be given by personal citation to be served not less than 10 days before the day appointed for such hearing.

(Code 1907, §5255; Code 1923, §9359; Code 1940, T. 47, §221.)Section 35-6-83 Section 35-6-83Guardian ad litem.

The court must appoint a guardian ad litem to represent the interest of such ward upon such hearing, as provided by law for the appointment of guardians ad litem in such court. The person so appointed such guardian ad litem must deny in writing the allegations of such report and resist the confirmation of such sale, and, if necessary, must, with the approval of the court, employ counsel to defend the interest of the person he so represents. He is entitled to reasonable compensation, and an allowance for reasonable fees of such counsel as he may so employ, to be fixed by the court and taxed and collected as costs in the action.

(Code 1907, §5256; Code 1923, §9360; Code 1940, T. 47, §222.)Section 35-6-84 Section 35-6-84Contest by custodian and next of kin.

The person in whose custody such ward is must be cited, and the next of kin so cited may also appear at such hearing and contest the confirmation of such sale.

(Code 1907, §5257; Code 1923, §9361; Code 1940, T. 47, §223.)Section 35-6-85 Section 35-6-85Conduct of hearing generally; order confirming sale.

On the day appointed for such hearing, or on any other day to which it may be continued the court must proceed to hear such report and the evidence for and against the confirmation of such sale. Such evidence shall be taken orally in open court at the time of the hearing or by deposition as in actions before the circuit court. If upon such hearing it shall appear to the satisfaction of the court that such sale as made is to the interest of the ward, the court shall make an order confirming the same, and, if it shall appear to the court that full payment has been made to the guardian for the interest of the minor in such sale, such order shall direct the guardian, or any other person appointed by the court, to make conveyance of the interest of the ward in the land or realty to the purchaser thereof.

(Code 1907, §5258; Code 1923, §9362; Code 1940, T. 47, §224.)Section 35-6-86 Section 35-6-86Multiple sales.

Two or more sales of the interest of a ward in different parcels of land or realty made under the provisions of this article may be set forth by the guardian in one report, and be embraced in the hearing of such report and the order of the court made thereupon, the court dealing with each such sale as it may deem proper.

(Code 1907, §5259; Code 1923, §9363; Code 1940, T. 47, §225.)Section 35-6-87 Section 35-6-87Report of payment; order for conveyance.

Within 30 days after receiving full payment for the interest of his ward in any land or realty so sold, such sale having been confirmed under the provisions of this article, the guardian of such ward must report such payment under oath to the court and apply for an order to make a proper conveyance of such interest to the purchaser. The court must examine such report and may also examine witnesses in relation thereto; if, upon such examination, it is satisfied that such payment has been made, it must make an order for such conveyance to be made by said guardian or by some other person, appointed by the court conveying all right, title and interest of such ward in such land or realty at the time of such sale thereof.

(Code 1907, §5260; Code 1923, §9364; Code 1940, T. 47, §226.)Section 35-6-88 Section 35-6-88Conveyances to be presented to court; certificate; when conveyance vacated.

Every conveyance made under the provisions of this article shall, before delivery, be presented by the person making the same to the judge of the court ordering it to be made. If such judge is satisfied that such sale has been duly confirmed and that such conveyance is properly made, he shall indorse upon such conveyance a certificate under the seal of the court of the confirmation of the sale under which conveyance is made, and of the confirmation of the conveyance as made. Such certificate must be recorded with the conveyance and shall be prima facie evidence of the confirmation of such sale and conveyance. If the court is not satisfied as to any such conveyance it must vacate the same, ordering a proper conveyance, as to which the same proceedings shall be had as provided by this section for the original conveyance.

(Code 1907, §5261; Code 1923, §9365; Code 1940, T. 47, §227.)Section 35-6-89 Section 35-6-89Sale void unless to advantage of ward and confirmed by court.

(a) If, on the hearing of the report of sale by the guardian, it shall appear to the court that the sale of any parcel of land or realty therein set forth is not to the advantage of the ward whose interest is so sold, the court shall order such sale set aside, whereupon the same shall become wholly void.

(b) No sale or conveyance of lands under this article shall be valid to divest the title of the minor or person of unsound mind on whose behalf it is made, unless such sale or conveyance shall be confirmed as provided in this article.

(Code 1907, §5262; Code 1923, §9366; Code 1940, T. 47, §228.)Section 35-6-90 Section 35-6-90Limitation on guardian's authority; authority of successor.

The authority conferred under the provisions of this article shall remain in the guardian in whom it is vested only so long as he continues as such; but his successor shall have the authority to consummate any sale made by him in accordance with such provisions.

(Code 1907, §5263; Code 1923, §9367; Code 1940, T. 47, §229.)Section 35-6-91 Section 35-6-91Provisions of article not exclusive.

The provisions of this article shall not be exclusive of other modes, remedies or proceedings for selling or partitioning the lands of minors or insane persons; but shall be construed to be cumulative or alternative remedies.

(Code 1907, §5264; Code 1923, §9368; Code 1940, T. 47, §230.)Section 35-6-100 Section 35-6-100Court to provide for purchase of filing joint owners' interests; notice by prospective purchasers.

Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not.

(Acts 1979, No. 79-334, p. 532, §1.)Section 35-6-101 Section 35-6-101Appointment of appraisers; report.

In such circumstances as described in section 35-6-100, and in the event the parties cannot reach agreement as to the price, the value of the interest or interests to be sold shall be determined by one or more competent real estate appraisers or commissioners, as the court shall approve, appointed for such purpose by the court. The appraisers or commissioners appointed under this section shall make their report in writing to the court within 30 days after their appointment.

(Acts 1979, No. 79-334, p. 532, §2.)Section 35-6-102 Section 35-6-102Payment of appraised value into court; time period; transfer of title.

After the report of the appraisers or commissioners, the tenants in common or joint owners seeking to purchase the interests of those filing the petition shall have 30 days to pay into the court the price set as the value of those interests to be purchased. Upon such payment and approval of same by the court, the clerk shall execute and deliver or cause to be executed and delivered the proper instruments transferring title to the purchasers.

(Acts 1979, No. 79-334, p. 532, §3.)Section 35-6-103 Section 35-6-103Effect of failure to pay purchase price.

Should the joint owners or tenants in common fail to pay the purchase price as provided in section 35-6-102, the court shall proceed according to its traditional practices in such cases as described in section 35-6-100.

(Acts 1979, No. 79-334, p. 532, §4.)Section 35-6-104 Section 35-6-104Costs of appraisal.

The costs of the appraisers or commissioners shall be taxed as a part of the cost of court to those seeking to or purchasing the interests.

(Acts 1979, No. 79-334, p. 532, §5.)Section 35-6-110 Section 35-6-110Crops subject to partition; by whom application made.

Matured crops of corn, cotton or other produce, raised and made by persons in such manner as to make them joint owners or tenants in common therein, whether gathered or ungathered, may be divided among them, on the written application of any one or more of them to the probate court of the county in which such crops, or any portion thereof, are situated; and such application may be made by the administrator or executor of a deceased person, or by the guardian of a minor or person of unsound mind interested in such crops.

(Code 1876, §3521; Code 1886, §3263; Code 1896, §3188; Code 1907, §5234; Code 1923, §9338; Code 1940, T. 47, §231.)Section 35-6-111 Section 35-6-111Contents of application.

Such application must set forth the names, ages and places of residence of all the persons interested in the crops, the location, value and description of the crops, the number of shares into which it is sought to divide them, the interest of each person therein, and who is in the actual possession thereof; and it must be sworn to by the applicant, his agent or attorney.

(Code 1876, §3522; Code 1886, §3264; Code 1896, §3189; Code 1907, §5235; Code 1923, §9339; Code 1940, T. 47, §232.)Section 35-6-112 Section 35-6-112Time for hearing; guardians ad litem.

Upon the filing of such application, a day must be appointed for the hearing of the same, within 15 days thereafter, if the parties are residents of this state, but if they are nonresidents, within 30 days thereafter; and if any of the parties in interest are minors or persons of unsound mind, guardians ad litem must be appointed to represent them, unless they have general guardians who will represent them on the hearing.

(Code 1876, §3323; Code 1886, §3265; Code 1896, §3190; Code 1907, §5236; Code 1923, §9340; Code 1940, T. 47, §233.)Section 35-6-113 Section 35-6-113Notice.

Notice of such application, and of the day appointed for its hearing, must be issued by the judge of probate to the parties in interest who are residents of this state, which must be served on them at least five days before the day appointed for the hearing; and if any of the parties in interest are nonresidents, such notice must be given by publication, once a week for three successive weeks, in some newspaper published in the county, or if no newspaper is published therein, then in one that is published in an adjoining county, a copy of which shall be mailed by the judge of probate, and directed to such nonresidents at their post offices, if the same are known, or can be ascertained by reasonable effort.

(Code 1876, §3523; Code 1886, §3266; Code 1896, §3191; Code 1907, §5237; Code 1928, §9341; Code 1940, T. 47, §234.)Section 35-6-114 Section 35-6-114When sheriff ordered to take possession of crops; forthcoming bond.

(a) If, at the time of filing such application, or afterwards, any party interested in the crops, his agent or attorney, makes affidavit before the judge of probate that he has cause to believe that the crops, or any portion thereof, will be removed, sold, consumed or destroyed before they can be divided, and gives bond, with sufficient surety, in double the value of the property to be divided, payable to the defendant or defendants, with condition to pay all costs and damages that may accrue from the wrongful filing of the application, the court shall order the sheriff to take possession of such crops, and to safely keep the same until final disposition thereof shall be made by the court, unless the other parties in interest, or some of them, give bond, with sufficient surety, to be approved by the sheriff, in double the value of the shares of those complaining, with condition for the delivery of such crops to the sheriff within five days after judgment, or, in case of default, to pay those entitled the value of their interest in the crops, together with all costs and damages for the detention of the same; and if the crops are not delivered according to the condition of the bond, any of the parties in interest may sue on the bond, jointly or severally, in the name of the sheriff for their use, and recover the value of their interests in the crops, and the costs and damages resulting from the detention.

(b) If a forthcoming bond is given under subsection (a) of this section and the crops are not delivered to the sheriff, as required by its condition, the sheriff must endorse on the bond the failure to deliver such crops to him, and must return the same to the judge of probate.

(Code 1876, §3524; Code 1886, §§3267, 3274; Code 1896, §§3192, 3199; Code 1907, §§5288, 5245; Code 1923, §§9342, 9349; Code 1940, T. 47, §§235, 242.)Section 35-6-115 Section 35-6-115Decree of partition or sale; effect on existing liens.

(a) If, on the hearing, the court is satisfied from the evidence that the parties are joint owners or tenants in common in the crops, a decree must be entered, declaring the interest or share each has therein, and ordering the crops divided in specie, or sold for division, as may appear from the evidence more practicable and better for the interests of the parties; and if any liens exist on the crops, or on any interest or share therein, in favor of any of the parties, such liens, and the extent and amount thereof, must be declared; and if a division in specie is ordered, such liens shall be charges only on the shares of the parties against whom they exist, but if a sale is ordered, the proceeds of the shares or interest upon which they exist, after payment of their part of the costs, shall be applied to the satisfaction of such liens.

(b) When any lien exists on the crops, or on any share or interest therein, in favor of any person other than the joint owners or tenants in common, such person must be made a party to the application, and his lien declared and protected; and if division in specie is made, such lien shall thenceforth rest only on the share or interest of the party against whom it exists; but if a sale is made, such lien shall be satisfied out of the proceeds of the share or interest upon which it exists; but such share or interest must first be made to contribute its share of the costs.

(Code 1876, §§3525, 3534; Code 1886, §§3268, 3269; Code 1896, §§3193, 3194; Code 1907, §§5239, 5240; Code 1923, §§9343, 9344; Code 1940, T. 47, §§236, 237.)Section 35-6-116 Section 35-6-116Sale by sheriff; distribution of proceeds by probate judge.

If the crops are ordered sold, the judge of probate must forthwith issue a writ, directed to the sheriff, commanding him to sell such crops for division, at a place to be designated in the decree and writ; and thereupon the sheriff must proceed to advertise and sell such crops at the place designated, in the same manner as he is required to advertise and sell personal property under execution issuing from the circuit court; and after making the sale, he shall forthwith make due return, and pay over the proceeds thereof to the judge of probate, who shall distribute the same among the parties according to their respective interests. If a forthcoming bond has not been executed under section 35-6-114 and the sheriff is not in possession of the crops, he shall seize the same for the purpose of making a sale thereof, if in the hands of any of the parties to the proceedings.

(Code 1876, §3526; Code 1886, §3270; Code 1896, §3195; Code 1907, §5241; Code 1923, §9345; Code 1940, T. 47, §238.)Section 35-6-117 Section 35-6-117Appointment and duties of commissioners generally; oath; return; seizure of crops.

If a division of the crops is decreed, the judge of probate must forthwith issue a writ, directed to the sheriff, and commanding him to summon three disinterested and intelligent householders of the county, not related to either of the parties, to make such division, who shall divide the crops among the parties according to the decree, a copy of which must accompany the writ, and shall, within 10 days after their appointment, make due return of the division made by them in writing and under oath, which oath must be taken before the judge of probate, and must set forth that they made the division fairly and impartially, to the best of their knowledge and ability; and for the purpose of such division the sheriff, if not in possession, and no forthcoming bond has been given, must seize the crops to be divided, if in the possession of any of the parties to the proceedings.

(Code 1876, §3527; Code 1886, §3271; Code 1896, §3196; Code 1907, §5242; Code 1923, §9346; Code 1940, T. 47, §239.)Section 35-6-118 Section 35-6-118Sale when partition impracticable.

If the commissioners find it impracticable to make division of the crops in specie, or that it is necessary to sell a portion thereof to make or equalize the division, they shall at once report that fact to the probate court, which shall thereupon order the crops to be sold for division, and shall issue a writ to the sheriff commanding him to make such sale; and such sale, and the distribution of the proceeds thereof, shall be made as provided in section 35-6-116.

(Code 1876, §3527; Code 1886, §3272; Code 1896, §3197; Code 1907, §5243; Code 1923, §9347; Code 1940, T. 47, §240.)Section 35-6-119 Section 35-6-119Replacement of commissioners upon failure to act.

If any of the commissioners for any cause fail to act, others may, at any time before division made, be appointed in their stead, and they shall have the same powers as if they had been originally appointed.

(Code 1886, §3273; Code 1896, §3198; Code 1907, §5244; Code 1923, §9348; Code 1940, T. 47, §241.)Section 35-6-120 Section 35-6-120Objections to commissioners' report; confirming or setting aside report.

Any of the parties may file objections to the report of the commissioners making the division, within 10 days after the same is returned, and, when filed, a day must be appointed to hear the same, of which notice, not exceeding 10 days, shall be given to all the other parties in interest; and on the evidence adduced on such hearing, the report shall be confirmed or set aside, as equity and justice may demand; and if the report is set aside, new commissioners shall be appointed to make division, who shall proceed as provided in this article for those originally appointed.

(Code 1876, §3528; Code 1886, §3275; Code 1896, §3200; Code 1907, §5246; Code 1923, §9350; Code 1940, T. 47, §243.)Section 35-6-121 Section 35-6-121Delivery of shares.

If all the parties consent in writing, the sheriff, immediately after division is made, shall deliver to each party his share of the crops; but if such consent is not given, the crops must be held by him until after the report of the commissioners has been confirmed, when he shall deliver the same to the parties entitled thereto, unless a supersedeas bond on appeal is given.

(Code 1876, §3529; Code 1886, §3276; Code 1896, §3201; Code 1907, §5247; Code 1923, §9351; Code 1940, T. 47, §244.)Section 35-6-122 Section 35-6-122Trial by jury.

Either party shall be entitled to a trial by jury, on demand made therefor at any time before the hearing, and the jury shall decide the facts under the charge of the judge. When a jury is demanded, the court shall order the sheriff to summon 12 men, or, by agreement of the parties, any less number, competent to serve as jurors; and the mode of swearing, impaneling, challenging and supplying the places of jurors shall be the same, so far as practicable, as in the circuit court, on the trial of civil actions.

(Code 1876, §3531; Code 1886, §3277; Code 1896, §3202; Code 1907, §5248; Code 1923, §9352; Code 1940, T. 47, §245.)Section 35-6-123 Section 35-6-123Costs and fees.

The probate court may tax the costs against the unsuccessful party litigating, or against the crops, which may be sold in amount sufficient to satisfy the same, if not paid; but each share shall be charged with only its proportion of the costs. If the crops involved are worth less than $100.00, the judge, sheriff, jurors, commissioners and witnesses shall only be allowed half the fees for similar services in other cases; if over $100.00, the same fees as they are allowed for such services in other cases.

(Code 1876, §3532; Code 1886, §3278; Code 1896, §3203; Code 1907, §5249; Code 1923, §9353; Code 1940, T. 47, §246.)Section 35-6-124 Section 35-6-124Appeals.

Any of the parties, within 10 days thereafter, may appeal to the circuit or supreme court from the decree of partition or sale, or from a decree confirming or setting aside the commissioners' report, under the regulations governing appeals in other cases from decrees of the probate court to the circuit or supreme court; and such decree may be superseded pending the appeal by the appellant, on giving bond in double the amount of the value of the interests of the other parties in the crops, with sufficient surety, to be approved by the judge of probate, and with condition to have the crops forthcoming to abide the decree to be finally rendered in the cause, and in the event of his failure to do so, to pay all costs and damages arising therefrom.

(Code 1876, §3530; Code 1886, §3279; Code 1896, §3204; Code 1907, §5250; Code 1923, §9354; Code 1940, T. 47, §247.)Section 35-6-125 Section 35-6-125Recordation of papers.

All papers connected with the proceedings shall be filed, but shall not be recorded unless one or more of the parties request it, in which case such party or parties shall pay the costs thereof; and the papers, or the record thereof, shall be evidence of title between the parties and their privies, to their respective shares of the crops.

(Code 1876, §3533; Code 1886, §3280; Code 1896, §3205; Code 1907, §5251; Code 1923, §9355; Code 1940, T. 47, §248.)Section 35-6-126 Section 35-6-126Article applicable to assignees; remedy not exclusive.

The provisions of this article shall apply to the assignee of any joint owner or tenant in common; but the remedy hereby given shall not prevent a resort to any other remedy allowed by law.

(Code 1876, §3535; Code 1886, §3281; Code 1896, §3206; Code 1907, §5252; Code 1923, §9356; Code 1940, T. 47, §249.)

USA Statutes : alabama