Acts 1876. p. 35.

Acts 1874, P. 19.

Acts 1874, P. 19.
Amending

22041

15. One family sewing machine; this exemption to exist whether the person owning said machine is the head of a family or not, and shall be good against all debts except the purchase money.

$356. Short homestead subject to purchase money, etc. Property exempted from levy and sale, as provided for in section 2040 of the Code, shall not be exempt from levy and sale for the purchase money, or State and county or municipal taxes.

$357. Compensation of Ordinary for setting apart short homestead. The Ordinary shall receive for each schedule filed, approved, and recorded, the sum of two dollars, and for each and every plat returned by the County Surveyor, under said section, to be recorded by him in a book kept for that purpose, the further sum of one dollar.

WAIVER OF HOMESTEAD.

2358. The Act of 2d March, 1875, providing for the waiver of homestead by mortgage etc., in favor of certain debts therein specified, is omitted. The Supreme Court have Acts 1875, p. 92. opened the doors and thrown up the windows. See 56 Ga., 53, etc. The Legislature is so far outstripped that the Act is rendered useless. See also Constitution of 1877, 2691.

ARTICLE III.

SUITS FOR THE RECOVERY OF HOMESTEADS.

3359. Equity only has jurisdiction for recovery of homesteads heretofore sold. Courts of equity alone shall have jurisdiction of suits for the recovery of property which has been set Acts 1876, p. 51. apart under the homestead and exemption laws of this State, and which was sold previous to February 15th, 1876, or for the recovery of any interest therein; and it shall be lawful for any party to prove that the purchase money of such property, or any part thereof, has been invested in other operty, or has been applied to the benefit of the family for whom such property had been set apart as aforesaid.

360. Proceeds invested-how held. In cases where the proceeds of property sold as aforesaid have been invested in other property, of equal value and benefit of said family, Acts 1876, p. 51. the Court shall confirm the sale and the purchase, and thereafter the property so purchased shall be held by said family as a homestead and exemption, in lieu of the property so sold, which shall be discharged of the particular estate vested by the homestead and exemption laws in said family.

361. Proceeds used for benefit of family. In cases where all the proceeds of the sale of Acts 1876, p. 51. such property have been applied to the benefit of said family, the Court shall confirm the sale, and thereafter the property so sold shall be discharged of the particular estate aforesaid. 362. Only a part of proceeds invested. In cases where a part only of the proceeds of property sold as aforesaid has been reinvested as aforesaid, the Court shall take an account of the proportion that the amount so invested bears to the entire value of the property so sold, and shall confirm the sale as to that proportionate part of the property, and confirm Acts 1875, P. 51. the purchase, and thereafter the property so purchased shall be held by said family as a part of their homestead and exemption, in lieu of the proportionate part aforesaid of the property so sold, which shall be discharged of the particular estate aforesaid.

4363. Only a part of proceeds used. In cases where a part only of the proceeds of property sold as aforesaid, has been applied to the benefit of said family, the Court shall Acts 1976, p. 52. take an account of the proportion that the amount so applied bears to the entire value of the property so sold, and shall confirm the sale as to that proportionate part of such property, which shall be discharged of the particular estate aforesaid.

364. Where proceeds are all misapplied-Court shall mould decree. In cases where any portion of the proceeds of property sold as aforesaid has neither been invested in other Acts 1876, p. 52. property nor applied to the benefit of said family, the Court shall ascertain the amount thereof, and the interest of said family therein, and shall mould a decree to protect the rights and interests of said family in the property so sold, and at the same time to protect the rights and interests of the purchaser in the reversion of such property after the particu. lar estate aforesaid shall have been determined, and shall require parties complainant to do complete equity in the premises before obtaining equity.

1365. Purchase money not paid. In cases where a portion or all of the purchase money of property so sold has not been paid, the Court may confirm the sale and order the reinvestActs 1876, p. 52. ment of the proceeds, or may cancel and set aside the sale, and compel the restoration of any part of the purchase money which may have been paid, and may grant relief to the parties according to the principles of equity.

2365. Suits must be brought-when. All suits herein provided for shall be brought Acts 1876, p. 52. within six months after February 15th, 1876, or the right of the party complainant, and all

right of suit for its enforcement, shall be forever barred.

2367. Suits pending. In cases where suits are now pending in Courts of law or equity Acts 1876, p. 52 for the recovery of property sold as aforesaid, parties defendant shall be entitled to the defenses and equitable relief provided for in the preceding sections.

CHAPTER XXIX.

INTEREST AND USURY.

$368. Usury defined. Usury is the reserving and taking, or contracting to reserve and take, either directly or by indirection, a greater sum for the use of money than the lawful interest.

$369. Twelve per cent. lawful interest. It shall not be lawful for any person, company, or corporation, to reserve, charge, or take, for any loan or advance of money, or forbearance to enforce the collection of any sum of money, any rate of interest greater than twelve (12) per centum per annum, either directly or indirectly, by way of commission, for advances, discount, exchange, or by any contract, or contrivance, or device what

ever.

$370. Penalty for violating the previous section. Any person, company, or corporation violating the provisions of the foregoing section, shall forfeit the interest and excess of interest so reserved, charged, or taken, or contracted to be reserved, charged, or taken.

$371. Forfeiture may be pleaded as set-off. The amount of forfeit as aforesaid may be plead as a set-off in any action for the recovery of the principal sum loaned or advanced by the defendant in said action.

$372. Forfeiture discharged only by payment. No contrivance or arrangement between parties to any such unlawful transaction, or their privies, shall have the effect to discharge such forfeiture, except it be an actual and full payment of the amount so forfeited.

$373. Limitation of suit for forfeiture. Any plea or suit for the recovery of such forfeiture shall not be barred by lapse of time shorter than one year.

Irwin's Code,

82024.

Acts 1875, p. 105.

Acts 1875, p. 105.

Acts 1875, p. 105.

Acts 1875, P. 105.

Acts 1875, p. 105.

§374. Legal rate still seven per cent. The legal rate of interest shall Acts 1875, p. 105. remain seven per centum per annum, and any higher rate must be specified in writing.

$375. Titles to property infected with usury, void. All titles to prop- Irwin's Code, erty, made as a part of an usurious contract, or to evade the laws against 2025. usury, are void.

Still of force: See Cooper vs. Braswell & Son, August Term, 1877.

$376. Provisions of Charters inconsistent, repealed. Every provision

in the charter of any corporation granted since the first day of January, Acts 1875, p. 105 1863, inconsistent with the foregoing provisions of this Chapter, is hereby repealed.

The usury laws were repealed February 19, 1873. The foregoing provisions were enacted February 24, 1875.

Acts 1876, p. 35. 2338.

CHAPTER XXX.

LANDLORD AND TENANT.

$377. (2279) Relation of landlord and tenant exists-when. When the owner of real estate grants to another simply the right to possess and enjoy the use of such real estate, either for a fixed time or at the will of the grantor, and the tenants accepts the grant, the relation of landlord and tenant exists between them. In such case no estate passes out of the landlord, and the tenant has only a usufruct, which he cannot convey except by the landlord's consent, and which is not subject to levy and sale; and all renting or leasing of such real estate for a period of time less than five years shall be held to convey only the right to possess and enjoy such real estate, and to pass no estate out of the landlord, and to give only the usufruct, unless the contrary be agreed upon by parties to the contract, and so stated therein.

$378. Constables may levy distress warrants.

Where a distress war

rant is sued out under section 4082 of the Code, if.the sum claimed to Acts 1875, p. 23. be due exceeds one hundred dollars, and said warrant shall be levied by a constable, it shall be his duty to deliver the warrant, with a return of the property levied upon, to the Sheriff of said county, or his deputy, who shall advertise and sell as now provided by law for Sheriff's sales. This section amends the proviso to section 4080 of the Code.

12303.

CHAPTER XXXI.

TRUST ESTATES.

$379. For whom trusts may be created. Any person competent by law to execute a will or deed may, by such instrument duly executed, Acts 1875, p. 26. create a trust for any male person of age, whenever, in fact, such person is, on account of mental weakness, intemperate habits, wasteful and profligate habits, unfit to be entrusted with the right and management of property: Provided, the requisitions of law in all other respects are complied with; and provided further, if when so created by deed, the same shall be recorded where the cestui que trust resides, within three months from its execution, and if not so recorded, the same shall be null and void; provided also, if at any time the grounds of such trust shall cease, then the beneficiary shall be possessed legally and fully of the same estate as was held in trust, and any person interested may file any proper proceeding in the Superior Court where the trustee resides, to have the trust annulled on that ground, if he so desires.

3377, 3382,

See 54 Ga., 231.

$380. Claims against the beneficiary. Any persons having claims against the beneficiary may avail himself of the provisions of the Code in relation to condemning trust property at common law.

1

CHAPTER XXXII.

WILLS-PROBATE OF FOREIGN.

(2433.

$381. Foreign wills-probate of. In all cases where any person has died or may hereafter die, leaving property in this State, and having a will which has been or may hereafter be proved and admttted to record in the proper Court of any country without the limits of the United Acts 1874, p. 83. States, it shall be lawful for the Court of Ordinary of the county where the testator was domiciled at the time of his death, if a citizen of this State, or of any county in which any of such property may be situated, if he were a foreigner, to receive a copy of such will, and of the probate thereof, authenticated by the seal of the Court where the same may be, and to grant letters testamentary, or of administration with the will annexed, as the case may be, to a citizen of this State applying for and lawfully qualified to receive the same, in the same manner as if the original will had been proved in said Court of Ordinary: provided, nevertheless, that said will be valid under the laws of this State; and provided, also, that such authenticated copy of the probate shall be only prima facie evidence of the due execution of said will, and may be objected to by caveat, and rebutted by proof, as in case of a will offered for original probate.

CHAPTER XXXIII.

ADMINISTRATION.

SECTION I.

PAYING THE DEBTS OF THE ESTATE.

§382. (2533.) Priority. In the payment of the debts of a decedent Acts 1877, p. 19. they shall rank in priority, in the following order:

Par. 7: All liquidated demands, including foreign judgments, dormant judgments, bonds, and all other obligations in writing for the payment of money, promissory notes, and all debts the amount due on which was fixed and ascertained, or acknowledged in writing, prior to the death of the decedent.

The above claims are seventh in order of priority.

SECTION II.

SALES OF RAILROAD AND BANK STOCK.

2560.

$383. Sales by executor, etc., of bank stock, etc. Whenever any administrator or guardian, or executor, unless authorized to sell by the pro- Acts 1877, p. 115 visions of the will which he is executing, shall desire to sell railroad or 2404. bank stock wherever found, and stocks of other incorporated companies, he must first apply to the Ordinary of the county which has jurisdiction over him, for leave to sell such stock, which shall be heard and determined after the usual citation for leave to sell, is issued, as applications for sale of real estate. After such sale is ordered, the sale of such railroad and bank stock, and stocks of other incorporated companies, shall be conducted in the same manner as sales of real estate are conducted.

22450.

SECTION III.

FOREIGN EXECUTORS AND ADMINISTRATORS.

$384. (2617.) Foreign executors, etc., are authorized to sell land in this State. Any executor or administrator, who resides in any other State of the United States, shall be, and is, hereby authorized to sell and Acts 1876, p. 36. Convey any property of his testator or intestate, lying or being in this State, under the same rules, laws and regulations as are now prescribed for the sale and conveyance of real estate by executors and administrators who are residents of this State: Provided, such foreign executors or administrators shall file and have recorded in the Ordinary's office, at the time of making his application for sale, an authenticated exemplification of his letters testamentary, or of administration: Provided, further, that said executors and administratoas shall give notice required by law of resident executors and administrators to creditors, and shall also file with the Ordinary, bond with good and sufficient security, in double the value of the property to be sold to pay, according to law, any creditor in this State, and distribute the proceeds of said sale to any resident heirs or legatees.

CHAPTER XXXIV.

COMMERCIAL REGULATIONS.

ARTICLE I.

HOLIDAYS.

§385. (2783.) What are holidays in bank business. The following days, viz: the first day of January, commonly called New-year's day, the twenty-second day of February, known as Washington's birth-day; the twenty-sixth day of April, known as Decoration day; the fourth Acts 1875, p. 91. day of July, called Independence day; the twenty-fifth day of December, known as Christmas day; and any day appointed or recommended ̧ by the Governor of the State, or the President of the United States, or any municipal authority, as a day of thanksgiving, or fasting and prayer, or other religious observance, shall, for all purposes whatsoever, as regards the presenting for payment or acceptance, and of the protesting and giving notice of the dishonor of bills of exchange, bank checks and promissory notes, made after February 23d, 1875, be treated and considered as the first day of the week, commonly called Sunday, and as public holidays; and all such bills, checks, and notes, otherwise presentable for acceptance or payment on said days, shall be deemed to be presentable for acceptance or payment on the secular or business day next preceding such holidays.

Acts 1876, p. 18.

$386. (2783.) Sundays provided for. Whenever the first day of January, the twenty-second day of February, the twenty-sixth day of April, the fourth day of July, or the twenty-fifth day of December shall fall upon Sunday, the Monday next following shall be deemed a public holiday, and papers due on such Sunday, shall be payable on the Saturday next preceding, and papers which would otherwise be payable on said Monday; shall be payable on the Tuesday next thereafter. Whenever either of the above named days shall fall on Saturday, the