Taylor v. Brown & Co. , 139 Ga. 797 ( 1913 )

Lumpkin, J.

(After stating' the foregoing facts.) Creditors of a husband sought to collect his debt by levying on certain land. The wife of the defendant in execution claimed the land under a deed from her husband, which bore date in 1905, but was -not recorded until January 19, 1912, after the judgment against her husband and just before the levy. She claimed to have acquired this property by virtue of having conveyed to her husband another lot in exchange for it; but there was evidence tending to show that her husband paid for the other lot, that he used the land levied on ás a security in borrowing money, with the knowledge of his wife, after she claimed to own it, and that the deed to her was withheld from record.

1. Evidence was admissible to show that the creditors extended credit on the faith of the representation of the husband that he owned the lot. This could not be introduced as proving an 'admission on the part of the wife, she being absent, and it not appearing that she knew of it. But it was admissible to show that the credit was extended on the faith of the property, while the husband was allowed to deal with it as the apparent owner, and also to contradict his evidence, in which he denied that he made any such representation. In a contest between creditors and a husband, who owes the debt, and his wife, who claims to own the property, but puts no deed on record and allows him to deal with the property as if it were his own, it is competent, on an issue of fraud, to show that the creditor had no notice of any claim to the property on the part of the wife, but extended credit on the representation that it belonged to the husband.

2. There was no error in allowing one of the plaintiffs to testify that he sold a horse to another person, and that such person and the defendant in execution signed the note given for the purchase-money. This was not objectionable on the ground that it tended to prove that the defendant in execution was a surety, after the rendition of judgment against him as a principal. It was not offered for the purpose of changing the liability of the defendant in execution under the judgment, but as tending to throw light on the question of fraud or no fraud in the alleged transfer of his property to his wife.

3. Complaint is made that the court did not allow counsel for the claimant to open and conclude the argument, upon motion therefor made “before the beginning of the argument.” Whether or not counsel for the claimant would have been entitled to assume the burden of proof and accordingly to have opened and concluded the argument, had he sought to do so at the outset of'the trial, need not be decided. He did not admit possession in the defendant in execution, or assume the burden of proof. The entry of levy contained the words: “said property levied on as the property of, and in possession of, the defendant, J. W. Taylor.”' But the claimant did not at the outset raise any contention that a prima facie case existed in favor of the plaintiffs. On the contrary the plaintiffs in execution apparently assumed the burden of proof, and introduced in evidence the execution and the entry of levy. The claimant then introduced the deed from her husband, and the plaintiffs in execution attacked that deed. They opened and concluded the introduction of evidence. They bore the brunt of the fight in making out a prima facie case and rebutting the evidence introduced by the claimant. It was too late after- this for the claimant’s counsel for the first time to set up a right to open and conclude the argument. Except in cases where the defendant introduces no evidence, the general rule is that the burden of proof carries with it the right to open and conclude the argument. If a party might, before evidence is introduced, place himself in a position to carry the burden and receive the corresponding benefit, he can not let his adversary carry the burden of proof, and, when both sides have closed their evidence, claim the benefit of opening and concluding the argument. Abel v. Jarratt & Co., 100 Ga. 732 (28 S. E. 453); Cook v. Coffey, 103 Ga. 384, 386 (30 S. E. 27); Central Ry. Co. v. Morgan, 110 Ga. 168 (35 S. E. 345).

4. The evidence was sufficient to support the verdict, and there was no error in refusing to grant a new trial.

Judgment affirmed.

All the Justices concur.