183 Ga. 139 | Ga. | 1936
On August 7, 1935, Acme Lumber and Supply Company obtained a judgment against McKinley Dwight, declaring it to be a special lien on certain real estate. Execution issued and was levied on the real estate. Bessie Dwight, wife of the defendant, filed her claim to the property. On the trial the jury found the property subject to the execution. A motion for new trial was overruled, and the claimant excepted. It appears from the evidence that she had loaned money to her husband at various times; that the plaintiff had furnished the husband building supplies and materials which went into the building of the house on a lot which the husband at that time owned, this house and lot being the property levied on; that after the house was completed the husband conveyed the property to the claimant to secure the loans made to him; that the claimant saw the materials and supplies delivered to the building site when the house was being constructed; that no representations were made to the plaintiff as to the ownership of the property; that no notice was ever given to claimant that the supplies and materials were being bought, and no demand ever made on her for payment. She contends that the evidence did not warrant a finding that she had expressly or impliedly consented to the improvements made in the building of the house, and for that reason the property should have been found not subject. No issue is raised, that, in the absence of a suitable amendment or proper equitable plea, the only issue which can be tried in an ordinary claim case is whether or not the property is subject, and no evidence can be introduced which tends to show merely that in good conscience and equity the claimant is liable for the debt. See, in this connection, Southern Mining Co. v. Brown, 107 Ga. 264 (33 S. E. 73); Ford v. Holloway, 112 Ga. 851 (38 S. E. 373); Liberty Lumber Co. v. Enecks, 23 Ga. App. 311 (98 S. E. 97). Under the evidence as disclosed by the record, it is not necessary to pass on this question;, nor is it necessary to decide
Under the evidence and the above rulings, the judge erred in overruling the motion for new trial.
Judgment reversed.