Sexton v. Burruss , 144 Ga. 192 ( 1915 )

Atkinson, J.

A mortgage fi, fa. in favor of T. P. Burruss against Rosa Sexton was levied on described real estate. A claim to the property was interposed by W. J. Reynolds as next friend for designated minor children. On the trial the claimants assumed the burden of proof, and introduced the defendant in fi. fa., who testified to the following effect: The land in dispute was the property of Acker Sexton, lately deceased, and was set apart as a year’s support to the witness (the widow) and the minoy children who are the claimants. Subsequently the witness bought a pair of mules from T. P. Burruss, and executed to him a mortgage on the mules and the land to secure the payment of the purchase-price. The mules were not bought for the purpose of running a farm on the land, but were intended to be used “for the benefit of the family,” and were used by one of the sons “to haul for people around” the qommunity The price of the mules was $500, and when they were sold at sheriff’s sale they brought $200. The income derived from the use of the mules “was used to feed the mules and to help us live.” At the conclusion oE the evidence the judge, on motion of counsel for the plaintiff', dismissed the claim, and the fi. fa. was ordered to proceed. The claimants excepted. Held, that the. evidence introduced by the claimants failed to rebut. the prima facie .case admitted in favor of the plaintiff by the claimants in assuming the burden of proof; and the dismissal of the claim, instead of letting the case proceed to verdict subjecting the property, furnished no cause of complaint on behalf of the claimants. Civil Code, §§ 4041, 4044; Allen v. Lindsey, 113 Ga. 521 (38 S. E. 975), and citations; Bridges v. Barbree, 127 Ga. 679 (56 S. E. 1025); Ragan v. Shiver, 130 Ga. 474 (61 S. E. 1).

October 13, 1915.

Claim. Before Judge Patterson. Milton superior court. August 18, 1914.

Henry N. Kirby and J. P. Broolce, for plaintiffs in error. G. L. Harris and George F. Gober, contra.

Judgment affirmed.

All the Justices eoneur.