If the px*operty ixxvolved in this case belonged to Geo. R. Hodges and not to L. L. Hodges, his wife, the assignment by the latter to the claimaixt, R. J. Hodges, for the benefit of her creditors, would of course be inoperative and the property should be subjected to the execution levied upon it at the suit of Smart Brothers against Geo. R. Hodges. Whether the property belonged to Geo. R. or to L. L. Hodges was, therefore, the issue in the trial of the right of property between the plaintiffs in execution axxd the grantee in the assignment. Without referring more particularly to the evidence, it will suffice to say that, in our opinion, it tended on the part of the plaintiffs to show that the property beloixged to Geo. R. Hodges in that he was in possession of it at the' time of the levy and it seems at all times prior to the alleged assignment and apparently up to that time dealt with it as his own, and also in that the jury might have inferred from the evidence — it was open to such inference — that Mrs. Hodges did not have the pecuniary means to purchase the' property; and this inference certainly lost nothing of its force by reason of the fact that Mrs. Hodges was not exaxnined on the trial. The evidence of Geo. R. Hodges and Sherill, on the other hand, tended to show that Mrs. Hodges purchased the property in her own name and right and that the only connection Geo. R. had with it was as her agent. These divergent tendencies of the evidence presented a case which should have been submitted to the jury with appropriate instructions upon the law bearing upon the issue. The court, therefore, properly refused plaintiffs’ request for the affirmative charge, and erred in giving the affirmative charge for tlxe claimant.
Reversed and x'emanded.