Calhoun v. Williamson

• Decision Date: 10 October 1939
• Docket Number: 12917.
• Citation: 5 S.E.2d 41,189 Ga. 65
• Parties: CALHOUN v. WILLIAMSON.
• Court: Georgia Supreme Court

5 S.E.2d 41

189 Ga. 65

CALHOUN v. WILLIAMSON.

No. 12917.

Supreme Court of Georgia

October 10, 1939

Felix C. Williams and A. S. Bradley, both of Swainsboro, for plaintiff in error.

I W. Rountree, of Swainsboro, for defendant in error.

Syllabus Opinion by the Court.

ATKINSON Presiding Justice.

A statutory claim affidavit, interposed by Maggie Williamson on levy of a fi. fa. on land, stated that the land 'levied on * * * under and by virtue of a fi. fa. in favor of B. S Calhoun, transferee, against Clara Williamson et al., issued from the city court of Swainsboro of the County of Emanuel as the property of said defendant, J. A. Ogburn as sole heir of Clara Williamson, is not the property of said J. A. Ogburn as sole heir of Clara Williamson, but is the property of * * * Maggie Williamson.' At the trial the claimant first introduced evidence, and closed her case. The evidence so introduced was her individual testimony to the effect that she owned the property in virtue of a deed prepared by her uncle, the holder of the fi. fa., and that the deed, dated May 1, 1923, was executed by her sister Clara. Also, that she, within the knowledge of the holder, had been in possession of the land under the deed ever since the date of its execution. The further evidence so introduced by claimant included the deed mentioned in her testimony. After introduction of such evidence, Calhoun (uncle of claimant), as transferee of the fi. fa., introduced evidence consisting of his individual testimony and certain documentary evidence. After close of his testimony the claimant was recalled and gave rebuttal testimony as to consideration of the deed. At the conclusion of the evidence the judge directed a verdict for the claimant. Calhoun's motion for a new trial was overruled, and he excepted.

1. The approved brief of evidence does not contain literally or in substance the execution of any of the entries thereon, and consequently it will be inferred that they were not introduced in evidence.

2. In view of the order of introduction of evidence, first by the claimant, it is inferred that the claimant assumed the burden of proof.

3. 'A claimant has the right to show that the execution which is levied on the property claimed by him is void or inoperative as a valid process.' Smith v. Lockett, 73 Ga. 104(2 a). See Wheeler v. Martin, 145 Ga. 164, 88 S.E. 951.

4. The filing of the claim admits entry of levy on the land claimed, but not legality of the execution under which the levy is made. Pearce v. Renfroe, 68 Ga. 194(5 a); Osborne v. Rice, 107 Ga. 281, 283, 33 S.E. 54. But the act of filing the claim will estop the claimant from denying sufficiency of entry of levy. Stinson v. Hirsch Bros. & Co., 125 Ga. 149, 53 S.E. 1011.

5. The motion for a new trial complains of refusal to admit in evidence a written application of claimant to a loan company for a loan of $3,000 on land not here involved. The application contained questions and answers:

'Q. Are there any outstanding judgments against you? A. Yes.

'Q. If so, what, how many and to what amount? A. Two, as surety $2887 to be paid at once by the principal.'

The application was dated May 15, 1923, next ensuing after the date of a deed executed May 1, 1923, by a sister of the claimant, in virtue of which the claimant asserted title and possession. The deed stated a consideration of $2000. By its terms it purported to convey 'all of my two-fifths undivided interest in the home place,' without further describing the character of her interest. Other evidence shows that it was a vested-remainder interest to be enjoyed after the death of the mother of the parties to the deed, who was shown to be yet in life at the time of the trial, holding a life-estate interest in the property as a whole, and living on the home place with her daughter, the claimant. One contention of the claimant was that the execution under which the levy was made had lost its lien on the land, in virtue of the Code, § 110-511, providing for discharge of real property from the lien of any judgment against the seller thereof...