Spraggins v. Brooks

Beck, P. J. The defendant in error held an execution against H. P. Foster, deceased, issued on a judgment dated February 18, 1910, and had the same levied by the sheriff on a certain lot of land. The plaintiff in error, as administrator of J. F. Foster deceased, interposed his claim, deposing that the title to the property was in his intestate. Upon the trial of the issue thus made, the jury found in favor of the plaintiff in execution. The claimant made a motion for new trial, which was overruled, and he excepted. The plaintiff in fi. fa. submitted evidence from which the jury were authorized to find that the property claimed was in possession of the defendant in fi. fa. at some time between the judgment and the levy. When he did this, he made out a prima facie case. Parsons v. Smith, 119 Ga. 42 (45 S. E. 697); Martin v. Cowan, 134 Ga. 477 (68 S. E. 69); Nation v. Jones, 3 Ga. App. 83 (59 S. E. 330). The defendant in fi. fa. died before the levy; and the court instructed the jury that if the defendant in fi. fa. was in possession of the land at the time of his death, under a claim of right, and was receiving the rents and profits therefrom, this would make a prima facie case and put the burden on the claimant to show by evidence that the title was in the estate of his intestate. As we have ruled above, possession by the defendant at the time of his death, a time between the date of the judgment and the levy, alone would have made a prima facie case; and the fact that the court charged that possession under a claim of right at that time would make a prima facie case affords no ground of complaint to the claimant, whatever ground of complaint it might have afforded the plaintiff had the finding of the jury been adverse to him. The rulings made in headnotes 2 to 5, inclusive, require no elaboration. Judgment affirmed. All the Justices concur.