Dunson & Bros. v. Unity Cotton Mills

Broyles, C. J. 1. In a claim case where the plaintiff in fi. fa. assumed the burden of proof (certain cotton having been levied on by the foreclosure of a mortgage thereon), he failed to carry .the burden, where he did not show either possession of the cotton, or the right of possession thereof, in the mortgagor at the time the mortgage was executed. Civil Code (1910), § 3256; Durant v. D’Auxy, 107 Ga. 456, 464. (a) This is true although it be shown by the plaintiff in fi. fa. that the mortgagor acquired possession of the cotton after the execution of the mortgage and prior to the levy. Ga. So. & Fla. Ry. Co. v. Barton, 101 Ga. 466, 469 (28 S. E. 842) ; Lubroline Oil Co. v. Athens Bank, 104 Ga. 376, 382 (30 S. E. 409). This ruling is not in conflict with the decision in Hill v. O’Bryan, 104 Ga. 137 (2) (30 S. E. 996), cited by counsel for the plaintiff in error; for in that ease the rights of third persons were not involved. 2. Under the above-stated ruling the verdict directed in this case was not erroneous for any reason assigned. Judgment affirmed. Luke wnd Bloodmoorth, JJ., concur.