148 Ga. 244 | Ga. | 1918
This is a claim case. A statement of the case wherein a judgment was rendered which is the foundation of the fi. fas. levied will be found in Mitchell v. Langley, 143 Ga. 827 (85 S. E. 1050, L. R. A. 1916C, 1134, Ann. Cas. 1917A, 469). The fi. fas. were levied on a certain house and lot in the town of Conyers, and the claimant, C. H. Mitchell, who is the husband of Mrs. Cora G. Mitchell, the defendant in fi. fa., filed a claim thereto. The jury, on the trial of the case, under the charge of the court, returned a verdict in favor of the plaintiff in fi. fa. A motion for a new trial being overruled, the claimant excepted.
On the trial the evidence for the plaintiff in fi. fa. showed that at the time of the levy the defendant in fi. fa. and the claimant, her husband, were living on the property, together with their two children. The defendant in fi. fa. and.her husband, the claimant, testified to substantially the same facts; and as far as material, the testimony was as follows: The defendant in fi. fa. made a voluntary deed to the property in controversy to the claimant in 1907. It “was written by Judge Helms,” and was witnessed by John T. Almand, justice of the peace, both of whom are dead. There was an affidavit on this deed. The consideration was “love and affection.” The claimant did not know anything about the execution of the deed “until it was all fixed,” and the defendant in fi. fa. gave it to the claimant. This was all the property the defendant in fi. fa. had. The deed was not recorded, and was “misplaced among the bank, papers, or at home, somewhere or other.” The claimant gave in the property for taxation as his own, and paid taxes on it since 1907. The claimant added two rooms and a reception hall and new porches to the house, and paid for them. The claimant had some property, but no real estate, before his wife gave him the deed to the property in 1907. Claimant had not seen the deed of 1907 since 1910. Another, or “copy” deed, was executed by the defendant in fi. fa., in lieu of the lost deed to the claimant to the property levied on, November 20, 1915. This last deed was “made freely and voluntarily.” The. judgments which were the foundation of the fi. fas. were rendered on Nov. 18, 1913, and the fi. fas. were issued Sept. 25, 1915. There is no evidence in the record to show that in 1907, the date of the first alleged deed, the defendant in fi. fa. had any creditors, or that the defendant took the deed with such knowledge. It was therefore error, harmful to the claimant, to charge the jury as follows: “If
Judgment reversed.