Tillman v. Fontaine

Simmons, Chief Justice. 1. An execution in favor of Tillman against George H. Fontaine was placed by the plaintiff in the hands of the. sheriff of Stewart county, who levied it on certain property in that county, "and then in the hands of the sheriff of Early county, who levied it on property in the latter county. The entry of levy by the sheriff of Stewart county stated that the property therein described was in the possession of Abe Helton, “as agent of George H. Fontaine, on the-plantation of defendant, which is known as ‘Fontaine upper place,’ in Stewart county, Ga.” The entry of levy by the sheriff of Early county stated that the levy was on certain cotton, corn, etc., in the possession of J. IT. Dent, “agent for defendant on defendant’s plantation in Early county, Ga.” The property levied upon in each instance-was claimed by Mrs. Fontaine. By consent both claims-were tried together. The plaintiff offered in evidence the fi. fas. with the sheriffs’ entries thereon, and the claimant objected to those portions of the entries which stated that the property was in the possession of Helton and of Dent,, “as agent” of the defendant, etc. The court sustained the objection, and the claimant excepted. We think the court was right in striking out so much of’ the entries as related to the agency of Helton and Dent. While it is the duty of the sheriff when he makes a levy on property to state in the entry of levy in whose possession the property is at the time of the levy, it is not his duty to state conclusions of law or fact, such as, that the675 person in possession is the agent of the defendant in fi. fa. This must in the nature of things be a conclusion of his own. mind, and is not a fact which he is authorized to state in his levy. In this particular case it was a disputed fact as to whether these persons were the agents of the defendant in fi. fa. or of the claimant, and we do not think a sheriff is authorized to settle even prima facie such a disputed fact by a recital in the entry of levy. All that it is necessary for the sheriff to do in making his levy is “to plainly describe the property levied on, and the amount of the interest of defendant therein.” (Code, §3610.) “The sheriff’s entry is only evidence where he is empowered by law to make it, and it is thus a lawful entry. All parts of the entry which it is his duty to make are testimony of themselves when it is proved that he made the entry; but no-part which he volunteered to make outside of official obligation to do so, is testimony.” Williams & Co. v. Hart, 65 Ga. 206. And see Guernsey v. Reeves, 58 Ga. 290. The words “on the plantation of defendant which is known as ‘Fontaine upper place/ in Stewart county, Georgia,” and “on defendant’s plantation in Early county, Ga,” ought not to have been stricken. These words located and identified the property and were to some extent a description of it. 2. The plaintiff sued out interrogatories for one Abe Helton, and in answer to cross-interrogatory as to whether the witness was ever in the employment of the claimant, he testified: “If I was ever in her employ it was through Mr. George H. Fontaine (the defendant in fi. fa.), who- told me he had sold out to her. Mr. Fontaine told me this in March or April, 1891.” The plaintiff objected to the answer on the grounds, that it was not responsive to the question, and was illegal and hearsay and made after the- suit was instituted which resulted in the judgment and fi. fa. The objection was overruled, and to this ruling the plaintiff excepted. We think the court erred in not ruling out [676] this testimony. According to this testimony, the declaration of the defendant in fi. fa. here referred to was made pending the litigation which resulted in the judgment which the plaintiff in fi. fa. was seeking to enforce, and shortly before the judgment was rendered. Declarations of a defendant in fi. fa. made under such circumstances are not admissible in favor of the claimant. Code, §3784(4); James v. Taylor, 93 Ga. 275. To allow this kind of evidence would be to put it in the power of a defendant in fi. fa. to make a fraudulent sale of property and establish the l)ona fides of the sale by telling others that he had sold to the claimant. 3. The defendant in fi. fa. wrote certain letters to the overseer of one of his plantations during the year in which the judgment was rendered, the subject-matter of the letters being directions as to the planting and cultivation of the crops, the managing and furnishing of produce to laborers, care of live stock on the farm, inquiries as to the crops, and shipment of supplies to the plantation. In none of these letters was the claimant’s name mentioned, or any reference made to her having any claim or interest in the farm, stock or crops. To the introduction of the letters the claimant objected, upon the ground that they were statements or declarations of the defendant and not binding on the claimant. The objection was sustained, and to this ruling also plaintiff excepted.. In our opinion these letters amounted to' more than mere declarations. They were acts of the defendant tending to show possession and control of the property by him.- If he had resided upon the property and had exercised acts of. control and ownership, no one would doubt that such acts would be admissible in evidence in a case of this kind. The plaintiff would be allowed, in such a case, to prove that he was on the plantation, that he directed and controlled the movements of the overseer and the laborers, that he directed where com should be planted, when it should be gathered, what [677] particular field should be plowed, when the cotton should be picked and ginned, and to what market it should be sent. All these would be acts of the defendant tending to show that he exercised control and ownership of the property. So likewise are these letters. . They axe directions to the overseer what to do about all the farming operations, when to do it and how to do it, and they show that he still exercised control and ownership. 4. Pending the trial the plaintiff offered to prove by a witness that the defendant in )fi. fa., while testifiying on a former trial of the case, made certain admissions in disparagement of the claimant’s title. The court declined to admit the testimony, and to' this ruling the plaintiff excepted. There was no error in excluding such testimony. See section 3784 (4) of the code, cited supra, which excludes declarations of “defendants in fi. fa. in claim cases after the pendency of litigation.” Moreover the testimony of a witness on a former trial could not be given in evidence against the claimant on a subsequent trial'so as to bind her, where it did not appear that the witness was dead or inaccessible. McElmurray v. Turner, 86 Ga. 215. 5, 6. We gather from the record, that the real question at issue between the plaintiff and the claimant was as to whether the transfer of the property by the defendant in fi. fa. to the claimant was fraudulent or not. All relevant facts and circumstances which would tend to throw light upon this question were admissible. Fraud is subtle and in many cases hard to prove, and the party alleging fraud ought to be allowed to prove any facts and circumstances which will tend to show it. We think, therefore, that when the plaintiff offered testimony to show that the defendant was insolvent at or about the time the transfer was made to the claimant, the court ought to have admitted it; and for this reason the tax books of the county, which were ■ offered in -evidence by the plaintiff to show that the claimant returned no property for taxation, were also admissible. [678] This fact, while not conclusive, was at least a circumstance which could be taken into consideration by the jury as tending to show that the claimant did not have the means with which to purchase the land in dispute. 7. Evidence was introduced by the plaintiff, tending to show that the defendant in execution had for fifteen or twenty years before the rendition of the judgment been in possession of the land on which the crops levied upon were raised, that the overseer and the hands on these lands had all been employed and paid by him, that he had managed and directed the farming operations thereon both before and after judgment, and that the claimant had never been upon the premises nor exercised any control or acts of ownership over the same. This we think was sufficient to shift the onus and put the claimant upon proof of her title; and it was therefore error to dismiss the levy upon the ground that the plaintiff had shown neither title nor possession in the defendant since the judgment. Judgmeni reversed.