CASES

IN THE

SUPREME COURT

Or

GEORGIA.

WILSON V. MOMILLAN.

(62 Ga. 16.)

Infancy — emancipation

An insolvent father may emancipate his minor child, even as against his creditors, and although the child remains at home and is hired by the father. (See note, p. 117.)

CLAIM

LAIM of property levied on by a judgment creditor of the father of the plaintiff. The opinion states the facts. The plaintiff had judgment below.

Winn & Simmons, for plaintiff in error.

N. L. Hutchins, for defendant.

BLECKLEY, J. The record discloses that the daughter was a minor, but does not give her exact age. It shows that the father and daughter made a contract in the commencement of the year 1876, by which it was agreed that she was to receive for her labor in the crop of that year all the cotton that might be produced; that

Wilson v. McMillan.

she worked on the father's farm with him and helped to cultivate it; that the area planted in corn was thirteen or fourteen acres, and that planted in cotton was five acres; that two bales of cotton were produced; that one of these was sold by him, the proceeds of which he kept, and the other was levied upon by virtue of a judgment against him, rendered in the previous year, that is, the year 1875; that on the faith of her contract with her father, she opened an account with a merchant, and from time to time, between January and October, purchased supplies and merchandise, some for herself and some for the family, expecting and promising to make payment out of the cotton or its proceeds; that if the cotton should be sold away from her this debt would be left unpaid and unprovided for; that the contract between her and her father was brought about by a threat on her part to leave him, as the other children had done; and that to the bale of cotton levied upon as above mentioned she interposed her claim, which claim was decided by the presiding justice of the peace in her favor.

1. In section 1792, the Code declares, "until majority, the child remains under the control of the father, who is entitled to his services and the proceeds of his labor." The same section provides that this parental power is lost, "by his consent to the child's receiving the proceeds of his own labor, which consent shall be revocable at any time." Other modes of losing it are enumerated, but they are irrelevant. In his excellent work on Master and Servant, § 25, Mr. Wood says: "It seems that emancipation may be implied even when the minor resides at home and works for his father, from a promise on the part of the father to pay him for his services during his minority, so that the minor may maintain an action against the father even for such services." Hall v. Hall, 44 N. H. 293; Jenny v. Allen, 12 Mass.377; 15 Eng. 211. No doubt the agreement would have to be clearly established. 64 Penn. St. 480. As to the rights of the father's creditors they would seem to be no more absolute over the prospective labor of the child than over that of the father himself, Certainly a debtor may work gratuitously for whom he pleases, and his creditor cannot oblige him to exact wages. While a debtor cannot give away his property to the prejudice of his creditors, he may give away his labor. So, too, may he give away his minor child's labor, either to the child itself or to another. A father is not bound to claim the earnings of his child, and appropriate them to his creditors. 3 Casey, 220. Of course, he cannot take

Wilson v. McMillan.

the earnings in fact, and cover them up against the claim of his creditors by a mere colorable arrangement with the child. But it is not apparent why a bona fide hiring of the child by him before the labor is performed is not as valid a mode of waiving parental right as any other. The good faith of the transaction is open to scrutiny, and is for decision by the tribunal trying the fact. A reasonable part of the prospective crop, in a fair and honest contract, may be promised the child at the time of the hiring, as compensation; and such part, when it comes into existence, will be the property of the child, and not liable to seizure to satisfy the father's debts. In the present case, the judgment was older than the contract of hiring, but as the hiring took place before the crop was planted, and therefore before the judgment lien could attach, and as there is no certainty that but for the contract and the labor done in pursuance of it, the cotton levied upon would ever have been produced, we think the date of the judgment makes no difference. When a laborer hired to plant and cultivate a crop is to receive a definite part of the crop as wages, as all the cotton, or all the corn, the hirer never has any real, substantial ownership of such part as against the laborer, provided the contract of labor is fully and faithfully performed. Grant that the father could have defeated the daughter's right by revoking his consent as given in the contract of hiring, still, he did not in point of fact revoke his consent as to the one bale levied upon, if he did as to the other. His creditor could not revoke for him, and without revocation the daughter's would be and remain the superior right.

2. Fraud, indeed, would break up the daughter's title, but the magistrate, we may assume, found no fraud; and the evidence is not such as to force him to find fraud.

Judgment affirmed.

NOTE BY THE REPORTER.- A father may, by agreement with his minor child, relinquish to the child the right he has to his services and earnings, and he will afterward have no right to claim his wages from his employers, but the child may claim and recover them in his own name for his own benefit. Hall v. Hall, 44 N. H. 293; Jenness v. Emerson, 15 id. 489; Jenny v. Alden, 12 Mass, 375; Withington v. Nightingale, 15 id. 274; Corey v. Corey, 19 Pick. 30; Wood v. Corcoran, 1 Allen, 405; Chase v. Elkins, 2 Vt. 290; Chase v. Smith, 5 id. 556; Morte v. Welton, 6 Conn. 547; Whiting v. Earle, 8 Rich. 201; Stiles v. Granville, 6 Cush. 458; Jennison v. Graves, 2 Blackf. 440; Burlingame v. Burlingame, 7 Cow. 92; Monaghan v. School Dist., 38 Wis. 100; Luckman v. Wood, 25 Cal. 147; Boynton v. Clay, 58 Me. 236; Farrell v. Farrell, 3 Houst. 633.

Emancipation gives the child the right to his own wages, his own time, and the control of his own person, and discharges the parent from obligation to support unless the child becomes unable to support himself.

Wilson v. McMillan.

Emancipation may be in writing or by parol, at any time during minority; for the whole minority or a shorter term; gratuitous or for a valuable consideration. It requires the child's assent. If gratuitous and by parol, it is revokable until acted on. Abbott v. Converse, 4 Allen, 536. The court said: "As it may be held by gift or license, without any consideration, there is no reason why the gift, when accepted, should be any more revoca. ble without the consent of the devisee, than other gifts. But a gift is not binding on the donor until accepted; and the acceptance of a gift of this character must be by acting upon it. Until it is acted upon, it must, from the nature of the case, be revocable." In Chase v. Elkins, 2 Vt. 290, the court said: "Possibly the father might reassert the right over the son, and control his earnings during his minority. The son may so conduct that it would be his duty to do so." So, in Clark v. Fitch, 2 Wend. 463, a case of oral emancipation, without consideration, the court said: "I apprehend the paternal rights of the father were not relinquished by what passed between them. There was no consideration for the relinquishment of his daughter's services, and in my opinion he might at pleasure revoke the license he had given his daughter, and call her home and employ her in his service till she should arrive at maturity." So, also, Everett v. Sherfey, 1 Iowa, 363. To same effect where child remained at home. Stovall v. Johnson, 17 Ala. (N. S.) 19. But after payment or performance the child is entitled to his earnings to that time. Shute v. Dow, 5 Wend. 204: Shedikar v. Everingham, 8 Dutch. 143; Gale v. Parrott, 1 N. H. 28; United States v. Metz, Watts, 406; Corey v. Corey, 19 Pick. 29; Torrens v. Campbell, 74 Penn. St. 472. And notice to the debtor not to pay the son will not revoke the son's right. Morse v. Welton, 6 Conn. 547.

Emancipation is always presumed in cases of necessity. Thus, if the parent absconds, expels his child, or leaves him to shift for himself, and refuses or neglects to provide, emancipation is presumed. Cloud v. Hamilton, 11 Humph. 104; Nighingale v. Withington, 15 Mass. 275; Stansberry v. Bertron, 7 W. & S. 352; Everett v. Sherfey, 1 Iowa, 356; The Ætna, 1 Ware, 474; Canovar v. Cooper, 3 Barb. 115; Lyon v. Bolling, 14 Ala. 753; Ream v. Walkins, 27 Miss. 516. In The Ætna, supra, it is said: "It would certainly be a great defect in the laws of any civilized people, if they furnished no mode by which the innocence and helplessness of infancy, and the purity and ingenuousness of youth could be protected from the brutality of an unnatural parent. As a father may forfeit his right to the custody and control of his child's person by abusing his power, so by neglecting to fulfill the obligations of a father, he may forfeit his right to the fruits of his child's labor. If he provides no home for his protection, if he neither feeds nor clothes him, nor ministers to his wants in sickness or health, it would be a most harsh and unnatural law which au thorized the father to appropriate to himself all his child's earnings. It would be recogniz. ing in fathers something like that pre-eminent and sovereign authority which has never been admitted by the jurisprudence of any civilized people, except that of ancient Rome, whose law held children to be the property of the father, and placed them in relation to him in the category of things instead of that of persons." So, in that of Canovar v. Cooper, 3 Barb. 115, where the father was absent several years, leaving his infant son to manage for himself, and contributed nothing to his education or support, and did not interfere in his engagements. The court said; "Where a parent, from confidence in his minor child, or as is sometimes, although I hope not often the case, from indifference as to his welfare, allows the child to manage for himself, and to obtain his support from his own industry, the reasons for the rule fail, and the rule falls with them." So in Ream v. Walkins, A Miss. 519, where the parents resided in another State, the court said: "The fact that the minor is suffered to leave his parents' house, and go abroad to shift for himself, ought to be satisfactory evidence of the parents' consent to the son's receiving and enjoying his own wages; otherwise he would be without the means of procuring bread." "As it would not be presumed that he was from home without leave, it would be inferred as a matter of necessity that he had a right to work for himself in order to obtain a living." And the court said, in Nightingale v. Withington, 15 Mass. 274: "But where the father has dis charged himself of the obligation to support the child, or has obliged the child to support himself, there is no principle but that of slavery which will continue his right to receive the earnings of the child's labor. Thus, if the father should refuse to support a son, should deny him a home, and force him to labor abroad for his own living, or should give or sell him his time, as is sometimes done in the country (although this latter practice is certainly

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questionable as to any promise made in consideration of it), the law will imply an emancipation of the son." But in Stiles v. Granville, 6 Cush. 458, it was held that mere proof that the father had permitted the son to go into another State for employment, and to contract for his services, would not raise a presumption of law of emancipation, and the consent of the father that the son might sue for those services would not authorize a presumption of law to support a suit in the son's name. The court held the question one of fart. The child is considered emancipated, his father being dead, and his mother remarned, and he suffered to live apart from her. St. George v. Deer Isle, 3 Greenl. 390. So in Wells v. Kennebunk, 8 id. 200, where the widow resigned her son to the care of his grandfather and did not contribute to his support, and he did not seek her aid nor submit to her control.

Slight circumstances will sustain a finding of emancipation, although not implying misconduct on the father's part. So where the mother, after the father's death, permitted the child to leave home and provide for himself, and to receive and invest his own wages, she could not claim the investment. Campbell v. Campbell, 11 N. J. Eq. 272. To the same effect Johnson v. Gibson, 4 E. D. Smith, 231; Decks v. Grisson, 1 Freem. Ch. 428; Boobier v. Bobier, 39 Me. 406. In Clinton v. York, 26 id. 167, the father said he would not have the child at his house, that his wife was quarreling with her, and that he was not able to take care of her under the circumstances she was in. Her brother took her to his home, and she was there delivered of a child. Held, not an emancipation. But in Wordell v. Cogyeskell, 2 Mete. 89, where the father lived apart from the mother, and suffered his minor to remain with the mother, to be supported and employed by her, and to employ himself as he pleased and take his own wages, it was held that he could not claim his wages from one with whom he had engaged at the mother's request. The court said it was a “qualified emancipation," and so, in Johnson v. Gibson, 4 E. D. Smith, 121, a minor son, over twenty, having been a clerk, receiving his own wages, but residing in his father's family, went to California against the wishes but with the consent of his father, who advanced his passage money, but did not receive his earnings nor provide for his support aboard, held, that the father was not liable for the expense of nursing him in a dangerous illness. So, where the child is allowed by the father to leave home, work for his own support, and contract for himself without interference, he may acquire and hold property, and sue concerning it. Boobier v. Boobier, 39 Me. 406. Burlingame v. Burlingame, 7 Cow. 93; State v. Doc, 5 Wend. 206, are to the same effect. Evidence that a minor is in the habit of doing business on his own account and in his own name, and of becoming responsible for his own supplies, is competent to show emancipation. Lackman v. Wood, 25 Cal. 147. But where the father was present and saw his minor daughter sign in her own name an agreement to act as a teacher, this alone would not show a relinquishment of his right to her wages. Monaghan v. School Dist., 35 Wis. 100. Whether it would be otherwise if he had himself executed the contract authorizing payment to her was queried. Id. In Whitney v. Earle, 3 Pick. 201, PARKER, C. J., however, said: "We go so far as to say that when a minor makes a contract for his services, on his own account, and the father knows it and makes no objection, there is an implied assent that the son shall have his earnings." But if the parent acts as next friend in his child's suit for his own earnings, the consent will be presumed. Boynton v. Clay, 58 Me. 236. So, where the father was a wit ness for the son, did not claim the wages, and spoke of the transaction as the son's. Scott v. White, 71 III 287.

Marriage with the father's consent, it seems, emancipates. Taunton v. Plymouth, 15 Mass. 203; Dick v. Grissom, 1 Freem. Ch. 428. But not so where it was without consent. White v. Henry, 24 Me. 531. The court said: "To allow this defense would hold out encouragement to sons impatient of parental control while in their minority to resist the reasonable authority of their fathers, and give the latter little means to secure their own legal rights beyond the exercise of physical restraints; would offer inducements to youth to enter into improvident and ill-advised marriages, which maturer years would cause them to regret and deplore." But if the father turns the child out of his house to shift for himself, he deprives himself of any right of action under the statute against marrying minors without consent of parents. Stansbury v. Bertron, 7 W. & S. 362. The court said: "The father has ceased to stand in the relation of parent, or consequently of a party who could be grieved. By turning his daughter loose on the world to shift for her.