45 Ga. App. 855 | Ga. Ct. App. | 1932
A general execution was issued on October 9, 1930, against Mrs. B. A. Scruggs and J. E. Scruggs, as principals, and G. W. Houston, as surety, on a judgment obtained by the Black-shear Manufacturing Company. This execution was levied on October 6, 1931, upon certain described personalty, consisting of certain mules, hogs, cows, and farming implements. The return oC the levying officer recited that the described property was found in the possession of the two principal defendants. A claim to said property was interposed by J. B. Scruggs, a son of Mrs. B. A. Scruggs and J. E. Scruggs, and bond given. The plaintiff traversed the claim, alleging that the property levied on was the property of the principal defendants. On the trial of the issue the plaintiff in fi. fa. introduced in evidence the execution and entry of levy and the return of the levying officer, and rested. The claimant introduced a deed from Mrs. B. A. Scruggs to Miss Vivian Scruggs to 65-1/2 acres of land, being the farm lands of the grantor, said deed being dated September 16, 1929, reciting a consideration of $1,000 and natural love and affection, and being properly executed and recorded. In this deed the grantor conveyed to the grantee described personalty, including the personalty involved in this case. One of the witnesses to this deed was A. J. Tuten, of counsel for the claimant in this case. Miss Vivian Scruggs testified: that she bought her mother’s equity in the farm where they live on September 16, 1929; that there was a loan against'the property in favor of the Patterson Bank; that she also bought the personalty on the farm, being the personalty involved in this case; that she paid her mother $1,000 for her equity in the farm and for the personalty; that her mother and father lived with lier; that the property has never been moved from the place; that her father continued to work on the farm, but not as manager; that since she bought the place she had been running it herself; that her father helped to make the crops, but had no interest in the farm or the personal property; and that she takes care of her father and mother on the farm, and her father just works when he can, his health not being good; that she had some other people to come and work on the
When the plaintiff in fi. fa. introduced the execution with the entry of the levying officer thereon that he had levied on the personalty described in his return in the possession of the principal defendants, the onus was cast upon the claimant to prove his claim.
The rulings stated in headnotes 2, 3, and 4 do not require elaboration.
It follows from what is said above that the court below erred in overruling the claimant’s motion for new trial.
Judgment reversed.