Opinion
33314.
DECIDED DECEMBER 5, 1950. REHEARING DENIED DECEMBER 19, 1950.
Claim; from Forsyth Superior Court — Judge Brooke. August 29, 1950.
Kenyon, Kenyon Gunter, for plaintiff in error.
Haynie S. Brooks, E. C. Brannon, contra.
Where, on the trial of a claim interposed to the levy of an execution upon a sawmill, issuing upon foreclosure under Code § 67-2401 et seq. of a lien as provided in § 67-2206, the evidence shows that the plaintiff in execution had possession of the property, the same having been bailed or "pawned" with him by the debtor (defendant in execution) about a week prior to the levy, and such defendant in execution operated said sawmill until that time, and the property was situated on the lands of the plaintiff in execution, a finding in favor of the plaintiff in execution and against the claimant was demanded, there being no evidence introduced by the claimant, even though the return of the sheriff recited that the sawmill was levied upon in the possession of the claimant.
DECIDED DECEMBER 5, 1950. REHEARING DENIED DECEMBER 19, 1950.
H. D. Major made affidavit that during 1948 he furnished to the sawmill owned by R. T. Grisson, situated on the affiant's premises, 200,000 feet of timber and other provisions to carry on sawmill work, the articles being of the value of $1242.70, which is due and unpaid, and that after same became due affiant demanded payment of Grisson, which was refused, and affiant makes this affidavit within one year from the time the debt becomes due for the purpose of foreclosing his lien on the mill, and other property thereat. This affidavit was filed on September 3, 1948, with the Clerk of Forsyth Superior Court, and on said day execution issued by the clerk commanding the sheriff to levy on the sawmill and accessories and certain mares and a truck of said Grisson, describing the same. On the same day, the sheriff made this return: "Executed the within fi. fa. by levying the same on the following described property: One American sawmill with belts, pulleys, etc., complete, and one Gainesville Machine C. Edger, also two mares roan colored, each about 7 years old and weighing about 1400 lbs. each. Levied upon as the property of R. T. Grisson, and found in the possession of B. M. Jones in Forsyth County on H. D. Major's land near the old resident of I. M. Place." Thereupon, on December 15, 1950, Benson M. Jones filed a claim for the property, claiming that such sawmill and all the property but the mares belonged to him and not to Grisson. Both a claim bond and a forthcoming bond were made by the claimant and he kept the property.
On the trial of the claim case, the plaintiff in execution introduced the lien-foreclosure affidavit, the execution, and the levy and return of the sheriff thereon. The plaintiff testified that he furnished the logs and supplies to Grisson, and that Grisson owed him $1242.70 for such logs and supplies. He further testified that the same were furnished since June, 1948, and within one year from the date of the filing of the affidavit to foreclose the lien, to wit, September 3, 1948. The plaintiff in execution also testified that Grisson told him many times that he owned the sawmill and accessories levied upon, that Grisson moved this mill on his, plaintiff in execution's, lands in June, 1948, and began cutting the logs furnished to him by the plaintiff from his lands, that Grisson remained on the premises and operated the mill until about one week prior to the levy (on September 3, 1948) of the execution which issued upon the filing of the foreclosure affidavit in Forsyth Superior Court, when he informed the plaintiff that he was "pawning" the mill and other property on the plaintiff's lands at the mill to the plaintiff until he, Grisson, could sell the lumber and pay the balance which he owed the plaintiff for the logs and supplies furnished. The plaintiff testified that Jones sent trucks to move the mill, and was loading the mill and appurtenances on the trucks without the knowledge or consent of the plaintiff in execution. The sheriff made the levy while Jones was there. Upon the conclusion of the plaintiff's evidence, the claimant moved to dismiss the levy on the ground that the plaintiff in execution had failed to make out a prima facie case showing that the property was subject, which it was incumbent upon him to do, the entry of the sheriff showing that the property was levied on in possession of the claimant. The court overruled this motion. The claimant introduced no evidence, and the trial judge thereupon directed a verdict for the plaintiff in execution. The claimant excepted to this court.
"All persons furnishing sawmills with timber, logs, provisions, or any other thing necessary to carry on the work of sawmills shall have liens on said mills and their products, which shall, as between themselves, rank according to date, and the date of each shall be from the time when the debt was created, and such liens shall be superior to all liens except liens for taxes, liens for labor, as provided for in sections 67-1801, 67-1802 and 67-2205, and to all general liens of which they have actual notice before their debts were created, to which excepted liens they shall be inferior." Code, § 67-2206. The defendant in error introduced evidence showing the debt and that he had a lien for the amount claimed, which had not been paid. The claimant, at the end of the plaintiff's evidence, moved to dismiss the levy because it appeared from the levy of the execution issuing on the filing of the lien-foreclosure affidavit that the property had been levied on in his possession and not in that of the debtor, the defendant in execution. The trial judge overruled this motion and held that the plaintiff had made out a prima facie case and that, as the claimant introduced no evidence, the trial judge directed a verdict for the plaintiff. "Upon the trial of all claims . . the burden of proof shall lie upon the plaintiff in execution in all cases where the property levied on is, at the time of such levy, not in possession of the defendant in execution. Code, § 39-904. 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. Andrews v. Sims, 27 Ga. App. 338 (3) ( 108 S.E. 258); Thompson v. Thompson, 31 Ga. App. 340 ( 121 S.E. 586). The evidence of the plaintiff shows that the property was either in possession of the defendant in fi. fa., being kept for him by the plaintiff in execution at the time of the levy, or that the plaintiff had possession, the defendant in execution having "pawned" or bailed it to him until he could pay the balance due for the logs and supplies furnished. Possession by the lienholder is proper. Young v. Alford, 36 Ga. App. 708 ( 137 S.E. 914). This being true, and as there was no contradiction thereof by the claimant, the plaintiff carried the burden, made out a prima facie case, and was entitled to a verdict finding the property subject. See Morgan v. Sims, 26 Ga. 283. It appeared that the defendant in fi. fa. worked the sawmill until about a week prior to the levy and that the plaintiff furnished him logs and supplies. It appeared without dispute that the defendant in fi. fa. left the mill and other property with the plaintiff as security until he could pay him. The mill and other property had not been moved from the plaintiff's land. Therefore the plaintiff carried the burden, and the execution issuing upon the filing of his affidavit to foreclose his lien was properly levied on this property and it was subject thereto. See State Banking Co. v. Miller, 185 Ga. 653 ( 196 S.E. 47); Sealy v. Beeland, 183 Ga. 710 ( 189 S.E. 524). The onus was then cast upon the claimant, and he introduced no evidence to show that he had any right at all to the property. "In a claim case where the plaintiff in fi. fa. proved that the defendant in fi. fa. was in possession of the property levied upon and exercising ownership thereof just before the levy was made, this was sufficient to make out a prima facie case and to shift the burden of proof; for the presumption is that when title is proved to exist in a certain person, it remains in him until the contrary is shown." Sasser v. Byrd, 8 Ga. App. 824 ( 70 S.E. 157). Where a claim is filed on the levy of an execution, and the entry of the sheriff shows that the claimant was in possession, the plaintiff in execution may show that the defendant in execution had possession or had title before the levy, before judgment, after judgment, or at the time of levy. See State Banking Co. v. Miller, supra. In the case at bar, there was no evidence by the claimant, and the plaintiff in execution introduced evidence that the defendant in execution had possession until a week before the levy and then left the property, which was on the plaintiff's land, in the hands of the plaintiff as a "pawn" or bailment for the amount due him for logs furnished to the defendant's sawmill. The verdict directed for the plaintiff in execution was demanded, and under the facts there was no error in overruling the claimant's motion to dismiss the levy. The recital in the levy that the property was in the claimant's possession was overcome by the plaintiff's evidence. However, the plaintiff carried the burden, and the claimant introduced no evidence showing any right, interest, or claim to the sawmill and other property involved.
This holding does not violate the principle of the cases cited by the claimant ( Southern Mining Co. v. Brown, 107 Ga. 264, 33 S.E. 73, Roughton v. Roughton, 178 Ga. 367, 173 S.E. 673). Here the plaintiff proved title and possession in the defendant in execution, as against the claimant, prior to the levy and after the creation of the debt, for which the law gave to the plaintiff a lien from the time the debt was created.
It follows that the court did not err in directing a verdict for the plaintiff in execution.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.