O'Neal v. First National Bank

Powell, J. 1. Where a husband, having in his possession certain money belonging to his wife, purchased a parcel of land, paying therefor partly with this money of his wife and partly with money which he borrowed in his own name, and with his wife’s consent took the title to the land in himself, with the understanding, evidenced in parol only, that when the sum so borrowed by him was repaid by her to him he would convey the land to her, the legal title to the land was in the husband, and the wife acquired neither legal title nor a perfect equity thereto, even upon payment to the husband of the sum so borrowed, until the husband executed the deed. Likewise the title to crops severed from the land before the deed from the husband to the wife was executed was in the husband, and ivas subject to a common-law judgment rendered against him in behalf of one of his creditors. 2. Where a levy is made upon property found in the possession of tne defendant in fi. fa., and a claim is filed thereto, the burden of proof rests upon the claimant. Where property levied upon and found in the possession of the defendant in fi. fa. was a bale of cotton, and there was [497] evidence from which the jury could find that the title to a part of the cotton in the bale was in the defendant in A. fa', and a part in the claimant, but the bale of cotton at the time of the levy was in the possession of the defendant in fl. fa., it was not error for the court to charge the jury that the burden was upon the claimant to show what part was subject and what part was not subject, and that upon his failure to do so it would be the duty of the jury to And all of the cotton subject. Judgment affirmed. Decided June 29, 1911. Levy and claim; from city court of Moultrie— Robert L. Shipp, judge pro hac vice. February 22, 1911. Edwin L. Bryan, for plaintiff in error. J. D. McKenzie, contra.