McLendon v. Dunlap Hardware Co.
| Decision Date | 09 December 1907 |
| Docket Number | 617. |
| Citation | 59 S.E. 718,3 Ga.App. 206 |
| Parties | McLENDON v. DUNLAP HARDWARE CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
In a claim case, the tax digest, showing the returns of the defendant in execution before the pendency of litigation, is admissible in evidence as an admission of the defendant. It is competent also to show that the claimant did not make any return of property for taxation during the year in which the judgment was rendered.
It is error to instruct the jury in a claim case that property returned in the name of a taxpayer is presumptively his property. The return is a circumstance of more or less probative value to be considered by the jury within the limitation above indicated, but the declaration of the party making the returns raises no presumption of title.
[Ed Note.-For cases in point, see Cent. Dig. vol. 21, Execution § 573.]
The court gave the following charge requested by the plaintiff in fi. fa.: "If the jury believe from the evidence that the 25 acres of cotton, 1/2 acre of potatoes, filed peas, and ground peas, 30 acres of hay, 1,800 pounds of seed cotton gathered, belonged to J. S. McLendon and other parties jointly, then he could not sustain his claim, and it would be your duty to find that much of said property subject to the plaintiff's fi. fa." Held, that this instruction was erroneous: (1) It did not state a correct principle of law; (2) it deprived the claimant of the benefit of his contention that he and his cropper made the agricultural products, and that they were undivided at the date of the levy.
The verdict is not supported by any evidence, and is set aside as contrary to law.
[Ed Note.-For cases in point, see Cent. Dig. vol. 21, Execution, § 573.]
Error from City Court of Sylvester; Frank Park, Judge.
Execution levy by Dunlap Hardware Company against J. A. McLendon, in which J. S. McLendon intervened and filed claim to the property levied on. From a judgment finding the property subject, claimant brings error. Reversed.
Mark Tison and J. H. Tipton, for plaintiff in error.
Perry & Williamson and Hardeman & Jones, for defendant in error.
An execution, issued from the city court of Sylvester dated March 30, 1906, in favor of the Dunlap Hardware Company against J. A. McLendon, was levied on the 21st day of September, 1906, upon the following described property as the property of the defendant in fi. fa., to wit: "Twenty-five acres of corn in the field not gathered; 25 acres of cotton in the field not gathered; 1/2 acre of potatoes and field peas and ground peas in the field not gathered; 30 acres more or less in hay with peas; one black horse-mule eight years old name Sam; one black mare-mule ten years old name Cedar; 1,800 pounds seed cotton more or less gathered in the house." On the 24th day of September, 1906, J. S. McLendon filed a claim to all of the property levied upon as above described. On the trial of the claim case, the plaintiff introduced the execution in his favor, and proved by the sheriff that when he made the levy he found both the defendant in fi. fa. and the claimant in the house located on the land where the property was, but that he could not say which one was in possession of the property or was in charge of the place upon which it was located, and that apparently the one was no more in possession of the place and the property than the other. The claimant thereupon, without contesting the sufficiency of this evidence to shift the burden, assumed the burden, and in his own behalf testified substantially as follows: That the defendant in fi. fa. J. A. McLendon, was his brother, and that he had rented the land from him for the year in which the levy was made, and that the crops which were levied upon were made by him and his cropper for that year; that his brother had no interest in the crops as landlord; that his cropper who planted and cultivated the crop, and who was not his brother, did have an interest in the crop, and there had been no division between him and his cropper as to the crops that were ungathered in the field, and this applied also to the portion of the crops that was in the house; that both of the mules levied upon were his individual property, in which the defendant in fi. fa. had no interest; that he lived on the place where these crops were made, and his brother had been with him for about two months before the levy, but before that time he had been living in Oakfield; that he (the claimant) had been living on this farm for two years prior to the levy; that during the year 1905 he worked for his brother for wages at $50 per month; that he "overseered the farm," but that for the year 1906 he rented the land from his brother and was his tenant; that he bought both of the mules levied upon himself, one from the Cedar Company, and the other from his brother the first week in January, 1906, paying for him the sum of $100; that the mules in question were paid for by him with his own money; that his brother owed him a large amount of money which he loaned him in 1905; that the crops under levy were made entirely by him and his cropper, and his brother had no interest in them whatever; that his taxes were given in by his brother for 1906 at his request, as his brother was staying at Oakfield, while he was living down on the farm and did not know when the tax receiver or assessor would be at Oakfield. The tax digest for the year 1906 was introduced by the plaintiff in fi. fa. over the objection of the claimant, and it showed that for the year 1906 J. A. McLendon, the defendant in fi. fa., paid taxes on merchandise, $5,000; on horses and mules, $200; and on carriages, etc., $25. The name of the claimant, J. S. McLendon, did not appear upon the tax digest for that year.
The jury found that the property was subject to the execution and the claimant filed a motion for a new trial on the general grounds and on the following special grounds: (1) Because the court erred in admitting the tax digest and in reading to the jury in connection with his ruling admitting the...
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