
    DEAN v. AMERICAN HARROW COMPANY.
    1. In the trial of a claim case where the execution has been levied upon land, and the plaintiff relies upon the possession of the defendant in fi. fa. after judgment, evidence leaving it uncertain whether the tenant in possession held for such defendant or for the claimant is not sufficient to change the burden of proof from the plaintiff in fi. fa. to the claimant.
    2. In such a case it is error to charge that if the defendant in fi. fa. was in possession before the judgment, the jury would be authorized to find the property subject.
    Argued October 6,
    Decided October 31, 1900.
    Levy and claim. Before Judge Janes. Haralson superior court. May 1, 1900.
    
      E. S. & G. D. Griffith, for plaintiff in error.
    
      James Beall, contra.
   Simmons, C. J.

An execution against Mrs. Dean was levied upon certain land to which a claim was filed by J. S. Dean, her son. The entry of levy failed to disclose who was in possession of the land at the time the levy was made. The judge heard testimony as to the possession at that time. It appeared that the land was occupied by a tenant. This tenant testified, in substance, that he, in the fall of the year 1896, talked with the son, the claimant, about renting the place; that he thought the son charged him too much rent, and he went to see the mother about the place; that subsequently he moved upon the place; that he thought Mrs. Dean was in possession, but he paid the rent for 1897 to the son, and in 1898 rented from the son and paid him "the rent. The judgment under which the property was levied upon was rendered on November 4, 1897, and the levy was made on January 4, 1898. Hpon this evidence the judge ruled that the plaintiff had shown that the defendant in fi. fa. was in possession, and that the burden was cast upon the claimant to establish his claim. We can not agree with the judge in this matter. The simple fact that in the fall, of 1896, before the judgment was rendered, the tenant failed to agree with the son as to the amount of the rent to be paid, and went to see the mother in regard to the matter, does not show that he rented from her for that year. Certainly it does not show that he held under her at any time between November 4, 1897, and January 4,1898. The tenant states merely that he saw the mother and afterwards moved upon the land, without intimating whether the charge for rent was reduced or with whom he finally closed the rental contract. What he thought as to who was in possession was immaterial, for possession can not be proved in that way. Besides, even if the defendant in fi. fa. had been in possession in the ■fall of 1896, that possession may have been changed before the rendition of the judgment in November, 1897. In order to shift» the onus to the claimant, the plaintiff must showj when he relies upon the possession of the defendant in fi. fa., that such defendant was in possession at some time between the date of the judgment and that of the levy.

The plaintiff in fi. fa. did not show in 'the defendant in fi. fa. any title to the land, but relied entirely upon the possession of such defendant. The judgment, as before stated, was rendered on November 4, 1897, and no possession was shown in the defendant 'subsequently to that date. Under these facts the judge charged the :jury as follows: “ If you believe from the evidence that the defendant, Mrs. M. W. Dean, was in possession of the land levied on in 1897 or 1896, you would be authorized to find the property subject.” This charge was erroneous. In order for a plaintiff in exe•cution to subject land, he must either show title in the defendant at some time or else show possession in the defendant at some ■ time after the judgment and before the levy. If title is shown in ■ the defendant at a time prior to -the date of the judgment, it will be presumed that such title continues in the defendant, and the burden ■■of proof will' be cast upon the claimant to show a change of title. If the plaintiff relies upon the possession of the defendant, he must ’show that the defendant was in possession at the time of the rendition of the judgment, or at the time of the levy, or at some time ■intermediate. ■ Unless he shows title or such possession in the defendant, he- can not subject the land. In the present case the judgement'was'based upon- a promissory note on the .back of which was a statement, signed by tbe defendant, to the effect 'that sb'e owned tbe land upon which the levy was subsequently made. The note was dated October 20, 1893. This statement was putin evidence, but we think that it did not, as against the claimant, show either title or possession in the defendant in fi. fa., and, further than that, it was made some four years before the time of the rendition of the judgment. On the trial the claimant introduced a deed from the defendant to the claimant; but a deed purporting to convey title out of the defendant is not evidence that title was theretofore in the defendant. On the whole we think no title was shown in the defendant and no possession in her at any time subsequent to the judgment. It was therefore not only error, but hurtful and material error, to charge that possession in the defendant in 1896, before the date of the judgment, was sufficient to authorize the jury te find the land subject.

Judgment reversed.

All concurring, except Little, J., absent.  