Whitley v. Foster

Atkinson, J. 1. On the call of the case counsel for plaintiff in error moved to dismiss the claim, “'because Mrs. Foster’s name, [35] the claimant, was signed to the claim bond by J. E. Foster as agent, and J. E. Foster signed the bond as security. It was insisted by plaintiffs counsel that this amounted in law to no legal bond; that the agent of Mrs. Foster could not become security, .and the claim should be dismissed.” The motion was overruled. This motion did not raise any question as to the authority of Foster to sign the bond as agent for his wife, but made objection to it solely on the ground that an agent who executed the bond for his principal could not also individually become the surety thereon. We know of no law that prevents this from being done, and none has been cited to us. 2. It appeared from the sheriffs entry of levy that J. E. Foster was in possession of the property when the levy was made. Counsel for plaintiff in ff. fa. contended that the burden of proof rested upon the claimant; that she must show title or prima facie evidence of title before the plaintiff was required to proceed. The court held that the burden of proof was upon the plaintiff in execution, and this was assigned as error. This ruling was correct. The Civil Code, §4624, declares, that, “upon the trial of all claims provided for in this chapter, the burden of proof shall lie upon the plaintiff in execution in all cases where the property levied on is, at the time of such levy, not in possession of the defendant in execution.” It has been held that possession by the defendant in execution at a time subsequent to the date of the judgment casts the onus. The sheriff’s entry showed that the defendants in fi. fa. were not in possession at the time of the levy, but that the husband of the claimant was so. The burden of proof rested upon the plaintiff. 3. As the burden of proof rested upon the plaintiff in execution, and he failed to carry such burden by proving either title or possession in the defendants in fi. fa. after the rendition of the judgment, he could not subject the land. The claimant was in possession and had been so for a number of years, claiming the land as hers. Whether her title was perfect or not, inasmuch as the plaintiff in fi. fa. himself not only failed to make out a prima facie case, but introduced in evidence a deed which showed the title out of the defendants in fi. fa. before the rendition of the judgment, she was entitled to a verdict as against him. This in no way conflicts with the rule that when a plaintiff in fi. fa. [36] has made out a primd facie ease a claimant can not defeat it by merely showing outstanding title in a third party. Whether the provision in the deed from E. E. Whitley to the trustees of the school should be treated as a limitation or as a condition subsequent need not be discussed. But on the general subject see Atlanta Street Ry. Co. v. Jackson, 108 Ga. 634 (34 S. E. 184); Wadley Lumber Co. v. Lott, 130 Ga. 135 (60 S. E. 836). As appears from the evidence in the bill of exceptions, the administrators of Whitley sold the entire tract to Camp without any reservation. If there was a reversionary interest in the school lot remaining in the estate, it was also conveyed to Camp. Thus there was' no evidence of title or possession in the estate at the time of the judgment, or at any time thereafter, which authorized the subjection"of the land to the h. fa., while the claimant showed possession and claim thereto. As to the remainder of the land besides the school lot there appears to be no controversy under the evidence as to the right of the claimant. Under these facts there was no error in directing a verdict in favor of the claimant. Judgment afprmed. All the Justices concur.