Burk v. Hill

Lamar, J. Mrs. Burk brought trover against Hill for the recovery of a horse, and by her own testimony, and that of the former owner, showed that she had purchased the animal and had been in possession of it for several years, returning it and paying taxes thereon, except that for 1901 she told the tax-collector that as'her son used it more than she did, he ought to pay the taxes, and for that year it was assessed as the property of Nathaniel C. Burk. He and the other members of the family testified that the 39 property belonged to the mother, though, as he constantly used it, it was sometimes referred to as his horse. It was levied on under an execution against him, and purchased by Hill, who testified that he did not know who owned the horse, and never heard-plaintiff say anything about it, except on the day of the levy “ plaintiff told me that they had levied on Nathaniel’s colt.” The constable testified that when he made the levy Mrs. Burk was present and did not say anything about it belonging to her, but. said it belonged to her son, but there was a mortgage on it. Evidence of similiar admissions was given by other witnesses, none, of which was denied by the plaintiff. The jury found for the der fendant. Without considering whether the statement that the officer had levied on her son’s colt was such an admission as to estop the plaintiff from denying the title of the purchaser (Civil Code, § 5150), it is sufficient to say that there was much evidence of other admissions by her that the horse belonged to the defendant in fi. fa. While all admissions should be scanned with care (Civil Code, § 5197), still they are evidence; and when a jury bases a verdict thereon, and the trial judge approves the finding, this, court will ■ not interfere with his discretion in refusing to grant a new trial. Judgment affirmed. All the Justices concur.