Nelson v. Brannon , 32 Ga. App. 455 ( 1924 )

Jenkins, P. J.

1. The declarations of a defendant in ft. fa., made after the pendency of litigation, are inadmissible in the trial of a claim case (Civil Code of 1910, § 5776 (4)); but “declarations of the defendant in execution, made up to the time of the levy and while he was in possession, that he owned the property levied on, are admissible in evidence, if there is any evidence that he was in possession of the property at the time of the levy.” Smiley v. Padgett, 123 Ga. 39 (1), 40 (50 S. E. 927); Rutledge v. Hudson, 80 Ga. 267 (6), 271 (5 S. E. 93); Rountree v. Gaulden, 128 Ga. 737 (2), 741 (58 S. E. 346).

(a) “The execution, with the entry of the levy, was a part of the papers before the court even if not formally introduced in evidence, and the entry of the levy made by th'e sheriff on the execution recited that at the time of the levy the property levied upon was in the possession of the defendant in execution.” Bank of Southwestern Ga. v. Empire Life Ins. Co., 10 Ga. App. 320, 321 (73 S. E. 597); Manley v. McKenzie, 128 Ga. 347, 351 (57 S. E. 705). Possession by the defendant at the time of levy may be shown also by the express admission of the claimant at the trial, or impliedly from his assumption of the burden of proof which otherwise would rest upon the plaintiff in execution. Engram v. Bell, 147 Ga. 416 (94 S. E. 245); Dawson Consolidated Grocery Co. v. Hudson, 137 Ga. 846 (2), 847 (74 S. E. 796); Manley v. McKenzie, supra; Andrews v. Sims, 27 Ga. App. 338 (3) (108 S. E. 258). The sheriff’s return on the execution in the instant case recites that the defendant was in possession of the property in question at the time of the levy. While the record does not show that the claimant admitted possession by the defendant, expressly or by formally assuming the burden of proof, it appears from the brief of the evidence that he in effect assumed such burden by proceeding to offer testimony on the opening of the case, and thus impliedly admitted possession in the defendant in fi. fa. and a prima' facie case in the plaintiff. Nor was any testimony introduced tending to dispute such possession. The declarations of the defendant, made before levy and while, under certain evidence, lie was in possession, as to his ownership of the part of the crop in question and his attempt to mortgage the same, were thus admissible under the rule stated above in the first paragraph.

Decided June 16, 1924. James Maddox, for plaintiff in error. Paul JJ. Doyal, contra.

2. While the evidence as to the ownership of the property claimed was sharply conflicting, the verdict finding the property subject was fully authorized, and, having- the approval of the trial judge, will not be disturbed.

Judgment affirmed.

Stephens and Bell, JJ., concur.