Green v. Wade-Chambers Grocery Co.

Luke, J. 1. In a claim case the following admission was made: “It is admitted by counsel for plaintiff and claimant that R. T. Green [defendant in fi. fa.] acted as agent of Mrs. A. Green [claimant], his wife, in the purchase of the mill property [the property levied upon]. It is further admitted that the defendant was in possession of the property at the time of levy.” Held: This admission on the part of the plaintiff explained the possession of the defendant in fi. fa., and did not relieve the plaintiff from the necessity of showing title in the defendant in fi. fa. [455] Decided March 15, 1917. Levy and claim; from city court of ' Quitman—Judge Long. May 27, 1916. M. Baum, for plaintiff in error. Branch & Snow, contra. 2. Where the plaintiff in fi. fa., under the- facts stated above, undertook to prove title in the defendant in fi. fa., it was error for the court to charge the jury as follows: “The burden of proof is upon the claimant, to show by competent evidence the facts which she alleges, in order to relieve the property from being subjected to the fi. fa. of the plaintiff in this ease. The duty rests upon her, under the rules of law, to carry this burden of proof by a preponderance of the evidence; and by a preponderance of the testimony is meant that superior weight of the evidence upon the issue involved which, while not enough to wholly free the minds and consciences of a reasonable doubt, is yet sufficient to incline the minds of impartial jurors to one side of the issue rather than to the other.” Civil Code (1910), § 5170. Jiidgment reversed. Wade, C. J., and George, J., concur.