Butler v. LaGrange Banking & Trust Co.

170 S.E. 918, 177 Ga. 714, 1933 Ga. LEXIS 395

• Court: Supreme Court of Georgia
• Decided: September 26, 1933
• Docket: No. 9228
• Status: Published

Opinion

Russell, C. J.

1. The interest which will support a claim is any interest which renders the property not subject to levy and fi. fa., or which is inconsistent with the right of the plaintiff in fi. fa. to proceed to sell the property. Where property is levied on and a statutory claim is interposed, it is not essential that the claimant should have absolute title. Wheeler v. Martin, 145 Ga. 164 (88 S. E. 951).

2. The controlling question in the case at bar is whether the claimant had any interest, or such an interest as is defined in the preceding note, in the realty which is the subject of the levy; and under the evidence this is purely a question of fact, dependent upon the credibility of the witnesses.

3. There being testimony in behalf of the claimant to the effect that her husband was indebted to her in a named amount at the time he conveyed his equity in the property to her, and prior to the rendition of the judgment which was the basis of the fi. fa., this testimony can not be disregarded by the court, because it was for a jury to say whether it would believe or disbelieve this testimony.

4. There being issues of fact which should have been submitted to the jury for determination, the court erred in directing the verdict, and in overruling and denying the motion for a new trial.

Judgment reversed.

All the Justices concur.