3 Ga. App. 206 | Ga. Ct. App. | 1907
An execution, issued from the city court of Sylvester, dated March 30, 1906, in favor of the Dunlap Hardware Company, against J. A. McLendon, was levied September 21, 1906, upon the following described property, as the property of the defendant in fi. fa., to wit: “twenty-five acres of corn in the field, not gathered; twenty-five acres of cotton in the field, not gathered; ■one half acre of potatoes and field peas and groundpeas in the field, not gathered; thirty acres, more or less, in hay, with peas; one black horse-mule eight years old, name ‘Sam;’ one black mare-mule, ten years old, name ‘Cedar;’ eighteen hundred pounds seed cotton, more or less, gathered in the house.” On September 24, 1906, J. S. McLendon filed a claim to all of the property levied upon as above described. On the trial of the claim case the plaintiff introduced the execution in his favor and proved by the sheriff that when he made the levy he found both the defendant in fi. fa. and the claimant in the house located on the land where the property was, but that he could not say which one was in possession of the property or was in charge of the place upon which it was located, and that apparently the one was no more in possession of the place and the property than the other. The claimant there' upon, without contesting the sufficiency of this evidence to shift the burden, assumed the burden, and in his own behalf testified substantially as follows: that the defendant, in fi. fa., J. A. Mc-Lendon, was his brother, and that he had rented the land from him for the year in which the levy was made, and that the crops which were levied upon were made by him and his cropper for that year; that his brother had no interest in the crops as landlord; that his cropper, who planted and cultivated the crop, and who was not his brother, did have an interest in the crop, and there had been no division between him and his cropper as to the crops that were ungathered in the field, and that this applied also to the portion of the crops that was in the house; that both of the mules levied upon were his individual property, in which the defendant in fi. fa. had no interest; that he lived on -the place where these crops were made, and that his brother had been with
The jury found that the property was subject to the execution; and the claimant filed a motion for a new trial, on the general grounds and on the following special'grounds: (1) Because the-court erred in admitting the tax digest and in reading to the jury, in connection with his ruling admitting the digest, the oath prescribed by the Political Code, §834, to be made by the taxpayer, the claimant insisting that the tax digest was not admissible for1 the purpose of showing title in the party making returns, and that reading the oath of the taxpayer had the effect to emphasize-the force of the evidence and unduly impress the jury with the probative value of tax returns. (2) Because the court erred in charging the jury as follows: “In regard to the tax books, all the evidence introduced to you from the tax books of this county is prima facie evidence that the property appearing opposite the1 party’s name belongs to that party; but this presumption may be-rebutted by proof. You look to see if this property described in these tax books is the property under levy. You look to all of
1. The tax digest was admissible in evidence for two purposes: first, as an admission of the defendant in fi. fa. before the pendency of litigation (Civil Code, §5189; Tolleson v. Posey, 32 Ga. 372; Smith v. Haire, 58 Ga. 446; Ivey v. Colquitt, 63 Ga. 509; Ivey v. Cowart, 124 Ga. 159 (52 S. E. 436, 110 Am. St. R. 160); also for the purpose of showing that the claimant failed to make any return of taxable property for the year in which he claimed to be the owner of the personal property in controversy. McCrory v.
2. The charge of the court objected to in the 2d special ground of the motion for a new trial, we think, is error. Tax returns, in certain cases, are a circumstance of more or less probative value, but the declaration in them as to title raises no presumption that what is therein stated is the truth.
3. The charge of the court objected to in the 3d special ground of the motion for a new trial (which was requested by the plaintiff in fi. fa.), we think, was erroneous for several reasons. If the jury believed, from the evidence, that, at the time of the judgment upon which the execution was issued, the property levied upon belonged to the claimant and any other persons jointly, neither of the other persons being the defendant in fi. fa., the property would not be subject to the fi. fa'., and it would have been the duty of .the jury to find a verdict in behalf of the claimant; and if the jury believed that the property, or at least a large part of it, belonged to the claimant and his cropper who had made it, but that it had not, at the time of the levy, been divided between them, it would not have been subject to the execution. According to the evidence of the claimant, this was the truth, but under this
4. Probably it was unnecessary to pass upon any of the special exceptions of error, as we are clear, from an analytical examination of the testimony, that the verdict for the plaintiff, finding the property subject, was wholly unsupported by the evidence. Even possession in the defendant in fi. fa. at the time of the levy, which gives rise to the presumption of ownership, was not sufficiently shown. The sheriff testified that he did not know whether the claimant or the defendant was in possession of the property when he made the levy; and the undisputed evidence of the claimant is, that he and his cropper had made the crop levied upon for that year on the place which he had rented from his brother; that this crop was not divided at the time of -the levy between him and his •cropper, and that the defendant in fi. fa. had no interest whatever in any part of the crop, and that the other property levied upon had been bought by him and paid for, and all of the property was in his. exclusive possession at the time of the-levy, and the defendant in fi. fa. had been staying with him for only two months, but lived at Oakfield. The inference which may have arisen from the tax returns, as before stated, was of no probative value; first, because it was fully met and overcome by direct and undisputed testimony; and secondly, because the propertjr levied upon, except the two mules, was certainly not' included in the returns at all, and it is doubtful if the two mules were included. While at all times reluctant to interfere with the verdict of the jury, we feel constrained to do so where we are clearly of the opinion that, so far .as the record shows, the verdict finds no support whatever in the facts. We are less reluctant to set aside the verdict in this case because, under the undisputed evidence, the greater portion of the property levied upon was the product of the brawn and muscle of the claimant and his cropper, earned in the sweat of their brows.
Judgment reversed.