Evans, Gardner & Co. v. Brown , 80 Ga. 656 ( 1888 )

Simmons, Justice.

From the facts reported in this case, it will be seen that the court below held that, where an administrator had obtained leave from the court of ordinary to sell lands of his intestate, and had advertised for sale a certain lot of land in Douglas county, and a claim was filed thereto, and the case transferred to the superior court, the burden of proof was'upon the claimant to show title to the land. We think the court erred in so ruling. The code, §3744, declares that a case of this kind shall be tried “ in the same manner and under the same regulations, restrictions and, penalties as are provided for the trial of claims to property levied on by execution.” Where an execution is levied upon property, and the defendant in fi.fa. is not in possession, the burden of proof is upon the plaintiff in fi. fa. In this case, it seems that this was a lot of wild land, and that neither party was in possession. Analogizing it to an ordinary claim case, we think that the administrator should have established his right to sell the land, not only by showing his leave to sell from the ordinary, but by going farther and showing facts indicating title thereto. If the administrator had been plaintiff in fi.fa. and had levied upon this unoccupied lot of land, and a claim had been filed, before he could have subjected the land the onus would have rested on Mm to show that the land was subject to Ms fi. fa. Being an administrator and having obtained an order to sell all the land of his intestate, and a claim having been filed to this particular lot of land, and the case transferred to the superior court, the law declares that it shall be tried in the same manner as ordinary claim cases are tried. This construction of the practice, under section 3744 of the code, was virtually adopted by this court in Campbell adm’r, vs. Roberts, 66 Ga. 734, As to where the burden rests in ordinary cases, see Knowles vs. Jourdan, 61 Ga. 300. As to when the burden is on the claimant, see Powell vs. Westmoreland, 60 Ga. 572.

Judgment reversed.