
    Hatcher, et al. vs. Cade trustee.
    The evidence not being sufficient to subject to the debt of the plaintiff in execution one-third of the lands, a new trial must be granted.
    New trial. Claims. Before Judge Crawford. Marion Superior Court. April Term, 1878.
    Hatcher died, leaving a widow and five children. His will provided a certain mode of division of his estate among the widow and children by commissioners. The legatees, however, divided it among themselves. All were of age except two, who ratified the division on coining of age. Cade, trustee, had a third interest in a lot of land levied on under a fi.fa. against the widow. Two of the children claimed it under the division. (See this case in 55 Ga., 359, when it was here before.) The jury found the property subject. Claimants moved for a new trial, which was refused, and they excepted.
    Smith & Little, for plaintiffs in error,
    cited 55 Ga., 359; Code. §§2584, 2585 ; 48 Ga., 596; 51 Ib. 433.
    Peabodt & Brannon ; Blandford & Garrard, for defendant,
    cited 54 Ga., 602.
   Jackson, Judge.

When this case was here before, we held that the one-sixth interest of these lands could not be made subject to this debt, and the court below having ruled to the contrary, we granted a new trial. Now one-third thereof has been found subject, and a motion was made for a new trial on the ground that the verdict is without evidence and against law; and the question pressed before us and argued here now is, mainly, was there evidence to sustain the verdict ?

Whilst we rarely interfere in a case where the presiding judge and the jury agree in relation to the evidence, we feel constrained to do so here. We have examined the record closely, and whilst there may be evidence pointing to great irregularity in the division of the estate, and to the appearance of fraud, and fraudulent concealment, perhaps, by Mrs. Hatcher, we can find nothing which shows title in her to one-third of these lands. There is no clear testimony that she ever lived on it, or controlled it, except as executrix ; and there is evidence going to show that it was divided and set apart to the claimants, but none that she took any interest in these lands with them, so as to subject the third part as hers.

In view of the ruling of this court in 55 Ga., 359, when the ease was here before, and the fact that we held then that if there was a division, though not following the will, it would bind all these parties of age, and the two claimants when they came of age, if they ratified, and that the plaintiff in execution must go upon Mrs. Hatcher’s part of the estate in severalty, set apart to her, and of the further fact that there is no evidence to show that she took any interest in these lands with the two claimants, we feel reluctantly constrained to hold that this verdict is not sustained by the evidence, and therefore we must grant a new trial. If Mrs. Hatcher’s share is in money and cannot be got at for levy, it is the misfortune of the plaintiff. Possibly there may be some remedy by equitable pleadings to uncover her interest wherever it is, but at law, and by these proceedings, unless the future trial should develop more testimony, we do not think that one third of this land can be subjected to this debt in this way.

Judgment reversed.  