Perryman v. Morgan

Fish, J. 1. It is, in the trial of a claim case arising upon a levy on realty, competent to prove by the parol testimony of a levying officer that a previous levy upon personalty made by him had been unproductive; and to this end he may testify that he had, by the plaintiff in-execution, been directed to dismiss this levy, and had in fact done so, but failed to make the entry of dismissal upon the execution. 2. While possession of land by a husband and his wife is presumptively his possession, such presumption may be rebutted. When, therefore, on the trial of a claim to land the right of the plaintiff in execution to subject the same depended solely upon the question whether or not the defend [556] ant in execution had been in possession of the land after the judgment, and the evidence left it uncertain whether the possession relied upon for this purpose was really that of the defendant in execution or of his wife, it was a case for determination by a jury, and not for solution by the direction of a verdict in favor of the plaintiff in execution. Submitted October 23, Decided November 30, 1897. Levy and claim. Before Judge Smith. Dodge superior •court. March term, 1897. DeLacy & Bishop, for plaintiff in error. J. E. Wooten, contra. Judgment reversed. All the Justices concurring.