Clements v. Stubbs, Tison & Co.

Little, J. On the 7th day of April, 1896, the claimant, on the levy of the execution, interposed a claim in which she averred that the land levied on had been set apart for a homestead for deponent and her family, in terms of the law. On the 17th of April, 1897, she amended her claim by averring that the property levied on was the property of claimant individually, and not the property of the defendant in execution. The plaintiff in fi. fa. made a prima facie case by the introduction of the execution and showing that the defendant was in possession at the time of the levy. The burden being then put upon the claimant, she introduced a deed dated October 15, 1894, recorded in 1897, from James E. Clements to her, purporting to convey the title of the land in question. It must be noted that James E. Clements was a stranger to this proceeding, and the claimant in no manner proved title in him at the time he made the deed to her, nor was there any attempt made to prove the fact that Clements' was in possession of the land at the time he made the deed, so as to raise the presumption of ownership. The question at issue was one of title, and it was not sufficient to introduce a deed from a third person convey [450] ing the title of the property to the claimant, without more, to authorize a verdict that the property was not subject to the execution. Such facts as vested title in the claimant must have been proved, or, by the proof of possession in her grantor, raise a presumption that the title followed the possession, in order for her claim to prevail. Not having done either, the presumption of title in the defendant, which arose by proof that he was in possession of the land at the time of the levy, must prevail. Error is assigned because, after the claimant rested her case, the plaintiffs in' execution were allowed to introduce the original petition of claimant, with her affidavit thereto, praying that a homestead' might be assigned her out of the land in question, together with the action of the ordinary thereon. The admission of this evidence was immaterial. The claimant did not rest her right to the property under the allowance of the homestead, but under the deed made to her by James E. ■Clements; and while we do not agree with the ruling of the court that the petition for allowance of homestead, as it appears in the record, necessarily estopped her from otherwise claiming the property, there was no error in admitting the petition for homestead and the subsequent proceedings had thereunder, because under one construction of the petition, schedule, and affidavits attached, it could be contended that she at that time admitted title in her husband, who was the defendant in execution. But inasmuch as the plaintiff in fi. fa. made a prima facie case which the claimant failed in any way to rebut, but one verdict could have been returned by the jury under the evidence, and that was that the property was subject to the execution. The court committed no error in directing the jury so to find. Judgment affirmed. All the Justices concurring.