A mortgage ji.fa. in favor óf Wilson against Mrs. Finney was levied upon a doctor’s phaeton or top buggy, as the property of Mrs. Finney, which was claimed by Maddox, Rucker & Co. There was a verdict in favor of plaintiff' in ft. fa.; claimants’ motion for new trial was overruled, and they excepted. The motion was upon the grounds that the verdict was against the weight of evidence and without evidence to support it; that the court erred in overruling claimants’ motion for a non-suit; and because the court permitted the plaintiff to testify, over objection of claimants, that Finney had stated that it was his wife’s business. It did not appear that any one was present except plaintiff and Finney. Claimants objected because the declaration of Finney was not admissible for the purpose offered, and because the evidence was immaterial, irrelevant and hearsay.
Upon the trial plaintiff testified: Finney came to my office and said he needed money to finish certain vehicles he was making, that the business was his wife’s business and she would make me a mortgage. I con*42sented. He and his wife were both present when the mortgage was executed, and he read it to his wife and •explained it to her. I had already advanced her $50, and I paid into her own hands when she signed the mortgage $150. The mortgage was signed and the money paid in the warehouse where the phaetons were. Finney was in possession at the time. He said the money was to carry on his wife’s business. The phaeton •described in the levy is the one I have the mortgage on. I have seen it since the mortgage was made in Maddox, Rucker & Company’s warehouse. — Another witness testified for plaintiff: Was working for Finney in 1884. Tliere was in the -shop a doctor’s pony phaeton which, when finished, I carried to Maddox, Rucker & Company’s warehouse. This was about May 1, 1884. Never saw Mrs. Finney about the shop. Mr. Finney managed the business. — The mortgage and note which it was given to secure were introduced. They were dated May 5,1884, and the mortgage was for $200, and was recorded on July 14, 1884. It does not appear from the brief of evidence what property the mortgage •covered, except as stated by Wilson as above, and in the fi. fa.
Claimants introduced a note given to them by Finney for $125, dated May 24, 1884, due fifteen days after date with interest at eight per cent, per annum, and containing the following sentence : “ One pony phaeton and one wagon, my own property, fully paid for and unencumbered, as collateral, subject to sale either public or private without further notice, if this note is not paid at maturity.” It contained no further stipulation indicating an intention to create a lien upon the property mentioned, or any other property. One of claimants testified: Lent Finney the money mentioned in the note, Finney saying it was to pay off hands. He was charged ten or twelve per cent, interest, and gave as col*43lateral the property mentioned in the note. Part of the note was paid before the property was levied on. Never knew Mrs. Finney. Did not know she had anything to do with the business. Finney has always been in charge of the business. Without the phaeton I do not think the collateral was worth as much as the amount of this note. — Mrs. Finney testified: My husband was my agent and managed the business. I never went about the shop. Do not know that I ever paid him for the business; it had formerly been his. Never had any more to do with the business' after it became mine than before. Claimants’ counsel, in opening his case, stated that the claimants elected to hold Mrs. Finney responsible and to treat Finney as her agent.
Burton Smith, for plaintiffs in error. C. W. Smith and Blalock & Birney, contra.