1. The authorities hold, that in the case of the trial of the right of property levied on under execution, to which a claim has been interposed under the statute, the plaintiff makes a prima facie case, entitling him to a verdict; when he shows that the defendant in execution was in the possession of the property at the time it was levied and seized by the officer under the execution. ' The burden is then cast upon the claimant to show title in himself.—Shahan v. Herzberg, 73 Ala. 62; Jackson v. Bain, 74 Ala. 330.
2. The charge requested by the plaintiff, which raises the only question presented for review, when analyzed, asserts no more than that if the jury believe .that the defendant in execution was in possession of the property when it was levied on, they must find for the plaintiff, unless the claimant has shown title in herself.
The proof showed, that the levy on the goods was made by S. M. Reeves, a deputy sheriff, who testified, that a few days before he made the levy, he went to the house occupied by J. R. Lawson — the defendant in execution — and his wife, the claimant, and asked Mrs. Lawson, if she claimed any of the property there, and her reply was, that she did not. The witness, however, testified further, on cross-examination, that on the day he made the levy, the defendant was present, and stated that his wife bought the property levied on and claimed it as belonging to her. There was no proof that the house belonged to Mrs. Lawson, and no other proof of her right or title to the property, further than that it was in the house used and occupied by her and her husband.
The first part of the charge had reference to this state *354of the proof, and to the bona fides of the statement of defendant, that the property had been bought and was claimed by his wife, which statement was the only proof of her title. She might have bought it, and claimed it, in a literal sense, and still it may not have been hers. Whether or not it belonged to her, would have depended, at last, on the fact, whether she had bought and paid for it with her own money. The statement of the charge, therefore, that “although J. R. Lawson may have said at the time of the levy, that his wife bought the property levied on, yet, if the jury believe that this statement was not made in good faith,” although not necessary to that part of the charge which followed, and which contained its real instruction, did not vitiate it as a proper and legal charge, viz. : that “if they further find, that J. R. Lawson was in the possession, then they must find for the plaintiff, unless Mrs. Lawson has shown title in herself.” The issue being tried, as formulated, was: Is the property levied on the property of the defendant in execution? The charge requested, very properly submitted this question, under the evidence of the cause, to the determination of the jury, and its refusal was ei’ror.
Reversed and remanded.