The court erred in directing the verdict, and in overruling the motion for new trial.
DECIDED MARCH 7, 1940. A common-law execution in favor of the First National Bank of Valdosta against U. C. Geiger, was levied on a half interest in four barber chairs, one lavatory, four mirror hatracks, one shower-bath, eight electric-light fixtures, one bathtub, one clock, one stool, two heaters, one cash register, two electric fans, one four-chair workstand complete, one bootblack-stand, thirteen chairs, plumbing fixtures, and one barber sign; to which Mrs. C. L. Geiger Sr. filed a claim. The levy recited that the property was levied on as the property of the defendant in execution, found in his possession. A prima facie case was made out by the introduction of the execution and return of the levying officer. The claimant introduced a bill of sale, executed by the defendant in fi. fa., conveying a half interest in the property levied on, the claimant being the grantee, which bill of sale contained the following provision: "The said U. C. Geiger . . reserves the right to operate and control said property during his natural life." This had the effect of reserving a life-estate in the defendant in fi. fa.North Georgia Fertilizer Co. v. Leming, 138 Ga. 775 (76 S.E. *Page 866
95); Porter v. Thomas, 23 Ga. 467 (2); Shealy v.Wammock, 115 Ga. 913 (42 S.E. 239). A life-estate may be created in personal property (Code, § 85-104), within the limitation that it may not be created in such property as is destroyed in the use. § 85-602. The property involved in this case is not such property as the law contemplates by the expression "such property as is destroyed in the use." It is idle to enter into a lengthy discussion of the question when the Supreme Court of this State has held that a life-estate may be created in property of such nature as to be susceptible of depreciation in value from use. In Leonard v. Owen, 93 Ga. 678,680 (20 S.E. 65), the court held that a life-estate could be created in live stock. Whatever the expression "such property as is destroyed in the use" may mean, it does not refer to property of a substantial nature which depreciates from use over a substantial period of time, such as the property here involved. For discussion of the almost identical question see Jolley v.Hardeman, 111 Ga. 749 (36 S.E. 952). A life-estate is subject to levy and sale; and since the levy covered a half interest in the fee, a half interest in the life-estate of the defendant in fi. fa. was subject to the execution, without an amendment to the levy. McLaughlin v. Ham, 84 Ga. 786 (11 S.E. 889).
The evidence shows that U. C. Geiger turned the property over to the claimant, and that she for a time paid him $7 a week to "make change" in the barber shop in which the property was used, and that he left and went to Arizona. There is no evidence that he abandoned his right to the operation and control of the property during his life, or that he gave it away, or in any way relinquished it or transferred it to the claimant. Her temporary use of it, or her use of it over a long period of time, was presumptively a permissive use, and would be no more evidence of her complete ownership than if he had made her no bill of sale and she had merely possessed the property belonging to the defendant. There is no contention that the claimant claimed the title to the life-estate of the defendant by reason of adverse possession.
The court erred in directing the verdict for the claimant, and in overruling the motion for new trial.
Judgment reversed. Sutton, J., concurs.