Pierce v. DeGraffenried

McCay, Judge. This was a claim case under our statute. It was in proof that the defendant in execution was in possession at the date of the levy. The burden, therefore, of showing title in the claimant was upon the claimant: Code, section 386. The claimant is required to make oath to the property: Code, section 3675. The form of the oath being in use is, that “the property levied on is not the property of the defendant, but is the property of the claimant.” And that is the issue in every claim case under a levy of an execution from an [394] ordinary judgment: See Forsyth vs. Marberry, R. M. Charlton, 324; Robison vs. Schley & Cooper, 6th Georgia, 515; Beers et al. vs. Darwin’s executors, 8th Georgia, 556. In all these eases it is held in accordance with what we have stated to be the issue, that the claimant must prove title in himself, and that he cannot defeat the plaintiff in fi. fa. by showing an outstanding title in third persons. Here the claimants do not pretend to claim title under the wife or children of the defendant, and the record from the Ordinary could only show a title in them. That title it is for them to enforce and insist upon, and not strangers. We see, therefore, no error in the ruling of the Court excluding the record laying off a homestead. Had the claimants stated that they expected to connect themselves with this record, to show that, under it, they had acquired title, it would be admissible. But, so far as appears, they do not claim under it. They are not the heirs of the wife and children, nor are they, so far' as appears, in any way connected with them. It is a simple attempt to defeat the plaintiff's levy by showing title in an outside claimant, not in the record, as a party. We therefore affirm the judgment in this case, since if the record from, the Ordinary was properly excluded, the plaintiff in fi. fa. was clearly entitled to a verdict. He had proven the defendant in p&ssession at the date of the levy, and there was nothing to rebut this prima facie right. We do not go into the other questions made, as in the view we have taken of the case, they are immaterial. Judgment affirmed.