Hightower v. Dykes

Hill, J.

Certain land was levied upon as the property of the defendant in fi. fa., and the return of the officer showed that the-defendant was in possession at the time of the levy. A statutory claim was interposed by third persons, who were the children of the defendant in fi. fa. On the trial the plaintiff introduced certain deeds produced under notice' served upon the defendant in fi. fa., executed by the claimants and purporting to convey to the defendant the land in dispute upon a nominal consideration. The defendant testified that he had made a contract to buy the land from the claimants, and in order to enable him to borrow money with which to pay the purchase-price the deeds mentioned were executed, but that he failed to procure the loan and the sale was never consummated, and he paid no consideration for the deeds. The defendant in fi. fa. continued in possession of the land and mortgaged it as his own after the execution of the deeds referred to. Held, that it was for the jury to decide whether there was a sale, notwithstanding the non-payment of the purchase-price; and a verdict finding the property subject was authorized by the evidence.

No. 878. December 12, 1918.

Claim. Before Judge Littlejohn. Sumter superior court. February 27, 1918.

G. B. Winchester and Shipp & Sheppard, for plaintiff in error. Hixon & Face,- contra.

(a) The briefs of counsel speak of the verdict as having been directed by the court, but it does not so appear from the record.

Judgment affirmed.

All the Justices concur.