Hale v. . Sweet

Gboveb, J. It was necessary for the defendant to show a valid judgment against Jones, upon which the execution, levied upon the boat, was issued. If the discharge of Jones, from his debts, was valid, under the provisions of article 3, title 1, chapter 5, part 2d, E. S., pursuant to which, it was claimed to have been given, the judgment against him was discharged, and the defense failed. The defendants claimed, that the discharge was void, for want of jurisdiction in the officer granting it, for the reason, that the affidavits of some of the petitioning creditors failed to show the consideration of the debts due to them, respectively, and, that the affidavit of Jones, annexed to and delivered with Ms petition, was not in compliance with the 7th section of the' act. It was held, by this court, in Stanton v. Ellis (2 Ker., 575), that the discharge was not conclusive evidence of the facts necessary to give the officer jurisdiction, and that it might be avoided, in *100 a collateral action, by proof of the non-existence of snch facts. In the present case, the affidavit of Jones, annexed to his petition, stated that he had riot, at any time, or in any manner whatsoever, disposed of, or made over, any part of his estate, for the future benefit of himself and his family, while the seventh section requires, that the affidavit should state that he had riot done any of those acts for the future benefit of himself or his family. It is a rule, in the construction of statutes, and other written, instruments, that the word “ and,”' may be construed to mean “ or,” and the latter as ineaning the former, when the sense gathered from the context obviously requires it. But, I do not think that rule can be applied to the affidavit" in question. It is obvious, that a disposition of property, for the joint benefit of the affiant and his family only, is negatived by the affidavit. I think it clear, that Jones could not be convicted of perjury, upon proof that he had disposed of property, for his own future benefit, or that he had made the like disposition for the future benefit of his family only. If right in this, it follows, that the discharge was void, and the judgment remained in full force. The execution was delivered to the sheriff, on the 29th October. It then became a lien upon all the personal property of Jones, liable to a levy, then in the county, and upon all such as should come into the county during the life of the execution, valid and effectual against every one except bona fide purchasers from Jones. (2 R. S., 645, §§ 13, 17.) The boat in question, came into the county on the 31st of October. The plaintiff’s mortgage, at that time, had never been placed on file, as required by the statute. Its subsequent filing was wholly ineffectual, as against the lien acquired by the executiori. It is claimed by the counsel for the plaintiff, that the omission to file the mortgage, was obviated by the plaintiff’s taking possession of the boat, before the delivery of the execution to the sheriff, or that the evidence was, at least so conflicting upon this point, that the judge erred, in not submitting the evidence to the jury, to find whether such possession had been taken. It was proved, upon the trial, that the *101 plaintiff built the boat. That he sold one-half to Jones, and took a mortgage thereon, to secure a portion of the purchase money. That it was agreed, between the plaintiff and Jones, that the boat should be run on their joint account, each to furnish half of the .team, and that Jones should act as master. This agreement had not been terminated, at the time of issuing the execution by the plaintiff. The boat was run by Jones pursuant to the agreement, until the 7th October, about three weeks before the issuing of the execution, when, as Hatch testifies, the plaintiff .employed him to .take charge of the boat, and run it. That, upon that day, he went on board, and thereafter run the boat, as captain, and controlled her, until the close of navigation. He further testified, that Jones, collected the freight, earned after .he went on board, discharged hands from the boat, and that the clearances of the boat continued.to be taken in the name of Jones, as cap tain. This evidence, taken as a whole, failed to show that the plaintiff had taken possession of the boat, to the exclusion of Jones, and the Judge, properly, directed a verdict for the defendant. It is not necessary to determine what effect the taking of possession, as claimed by plaintiff, would have had upon the rights of the parties. The judgment appealed from must be affirmed.