160 Ga. 99 | Ga. | 1925
This is a levy and claim case. Realty Investment Co., as plaintiff in a distress warrant against S. T. Simmons, as defendant, caused a levy to be made on lots of land 9 and 10 in East Macon, to which land Jennie Simmons, the wife of the defendant, filed a claim. The entry of levy did not recite that the property was in the possession of the defendant, S. T. Simmons. The case proceeded to trial before a jury, and a verdict was rendered against the claimant, finding the property subject. A new trial was refused, and the claimant excepted. The case was tried on an agreed statement of facts. From these facts it appears that the claimant is the wife of the defendant, and that she claims the land levied upon under a deed to her from the defendant, her husband, dated July 21, 1921. The plaintiff introduced the agreed statement of facts, the distress warrant, the entry of levy, and the defendant’s notes given to the plaintiff prior to the execution of the deed. The claimant did not offer any oral evidence.
The court charged the jury as follows: “There is no conflict in the evidence here as to the substantial facts as they appear upon an agreement of counsel in the case, but the question arises whether or not, under the law applicable to the case, the claimant, that is the wife Mrs. Jennie Simmons, has carried the burden oi
We are of the opinion that the criticisms of the charge are without merit. It has been held by this court that on the trial of a statutory claim to land under the Civil Code of 1910, § 5157, interposed to resist the levy of a fi. fa., it is not necessary, in order to show fraud in a deed to the claimant, to have special pleadings for that purpose. Harris v. Anderson, 149 Ga. 168 (2) (99 S. E. 530); Askew v. Amos, 147 Ga. 613 (95 S. E. 5); Fouts v. Gardner, 157 Ga. 362 (1 a) (121 S. E. 330).
Nor is the contention sound that the charge of the court was erroneous on the question of the burden of proof. It will be seen from the charge quoted abo've that the court instructed the jury that “the burden is upon the plaintiff to show and to make out his case and show this property belonged to the husband. He undertakes to carry that burden by showing this property was the husband’s shortly before this conveyance; and I charge you that if they can show it, that there was a conveyance that had the effect to render his levy void, or render the levy unproductive because the property was claimed by the wife, then the burden is upon the wife to show her claim was a bona fide claim, a fair claim, and fair conveyance made as between any other two persons,” etc. The agreed statement of facts shows that the husband owned the property in July before the levy in October. This court in Gill v. Willingham, 156 Ga. 728 (9) (120 S. E. 108), a case somewhat similar to the present case, held: “In a claim case where the wife sets up title to the property levied upon under a deed from her husband, and his creditor attacks the same upon the ground that it is a fraudulent conveyance, intended to hinder, delay, and defraud such, creditor, the law does not put upon the creditor the burden of establishing fraud in the conveyance. On the contrary it puts the burden upon the husband and wife. They
Judgment affirmed.