Thompson v. Thompson , 31 Ga. App. 340 ( 1923 )

Jenkins, P. J.

Plaintiff in error, T. B. Thompson, sued out a distress warrant, as guardian, against Robert Thompson for the rent of an undivided two-thirds interest in a certain farm. The rent note contained the following language: “all of the lands known as J. S. Thompson place containing 204 acres, more or less, less a 1/3 undivided interest.” Upon the levy of the distress warrant the defendant in error, Sam Thompson, filed his claim to the crops levied upon, contending- that they were raised by him upon a segregated portion of the premises, amounting to 68 acres, which represented an interest equivalent to the third undivided interest not covered by the rent note. It appears from the claimant’s evidence that he himself owned a. sixth undivided interest in the premises; that he rented a sixth interest belonging to the defendant under a contract made with the latter; and that the crops levied on had been raised upon this third interest in the premises, which the claimant, acting in his own right and with the permission of the defendant, had segregated to his own use. It appears further, that, while the plaintiff was no actual party to the segregation, it had been in operation for several years prior to the time that the defendant’s rent note had been taken. The officer’s return did not indicate that the property was found in the possession of the defendant in fi. fa., and all the testimony showed that it was levied upon while in the possession of the claimant. The jury found the property not subject; the plaintiff in fi. fa. made a motion for a new trial, upon the ground that the verdict was contrary to law and the evidence; the motion was overruled, and he excepted. Held:

1. “Upon the introduction of an execution with an entry of levy thereon showing that at the time of levy the property was in the possession of the defendant named in the execution, the burden was upon the claimant to prove his title.” Jones v. Newberry, 16 Ga. App. 424 (85 S. E. 617); Dawson Consolidated Grocery Co. v. Hudson, 137 Ga. 846, 847 (2) (74 S. E. 796); Andrews v. Sims, 27 Ga. App. 338 (3) (108 S. E. 258). But where “it appears that the claimant is in possession of the property levied on, the burden of proof is on the plaintiff in execution to show either title or possession in the defendant in execution since the debt of the former became a lien on the property of the latter.” Southern Mining Co. v. Brown, 107 Ga. 264 (2), 266 (33 S. E. 73); Allen v. Clare, 136 Ga. 550 (1)’ (71 S. E. 896).

2. “Every tenant in common has the right to possess the joint property; and so long as ho occupies no greater portion of it than his own share would be on division, and does not withdraw from it any of its essential value, such as mineral deposits, he is not liable to account for rent to his eotenant.” Civil Code (1910), § 3724. In the instant case it appears, from undisputed evidence, that, while the tract remained undivided, no written or executed parol agreement of partition or decree of court therefor having been made, the claimant in his own right and as subtenant of the defendant in fi. fa. occupied and cultivated the particular 68 acres on which the crops were raised as the equivalent of a third undivided interest in the entire premises, and that such actual segregation had been in operation apparently without objection for several years prior to tire taking* of tlie present relit note. This they had the right to do without payment of rent, unless such occupied portion constituted a greater part of the premises than they would have been entitled to on a proper division of the property. The evidence entirely fails to indicate any such unfair or unequal occupancy, and the .verdict cannot be disturbed. ... . ■.

Decided December 7, 1923. Rehearing denied January 21, 1924. Orrin Roberts, for. plaintiff. R. W. Roberts, contra.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.