Marlar v. Smith

98 So. 338 | Miss. | 1924

Anderson, J.,

delivered the opinion of the court.

This is an appeal from a final decree of the chancery court of Tishomingo county rendered upon a claimant’s issue involving a bale of cotton levied on by an execution issued on a judgment in said court. Appellant Marlar was the judgment creditor, while appellees G. W. Smith and his wife, Maggie Smith, were the judgment debtors. Appellees Hubert and Cecil Smith, minors, son and daughter of said judgment debtors, were the claimants of the property levied on by' execution. Appellant had recovered a personal decree in said court against appellees Gr. W. Smith and his wife, Maggie Smith, for something over $300. Appellees Hubert and Cecil Smith had during 1922 raised the bale of cotton in question on land belonging to the judgment debtors. Execution was issued on said judgment and levied on the cotton so raised by said Hubert and Cecil Smith. They interposed a claim of title thereto. There was a trial of the claimant’s issue and a final decree rendered in favor of appellees Hubert and Cecil Smith, from which appellant, the judgment creditor, prosecutes this appeal.

Appellant’s contention is that under the law the services of the said two children Hubert and Cecil Smith, the claimants, belonged to their father and mother, the judgment debtors, and therefore the fruits of their labor, the bale of cotton in question, was the property of the judgment debtors and liable to be taken by said execution; that under the law said judgment debtors as against appellant, their judgment creditor, could not give the claimants, their minor children, the fruits of their labor. On the other hand, said claimants contend that their parents, said judgment debtors, had the right under the law to emancipate them, and had in fact emancipated them, at least as to said crop so raised by them during the year 1922; that the right given them to make said crop and receive the fruits of their labor amounted to partial emancipation with which the appellant as judgment creditor was not concerned.

The chancellor found as evidenced by his opinion and degree in the record, and was justified in so finding by the evidence, that said judgment debtors owned a farm in Tishomingo county; that the father during 1922 had arranged to work at a sawmill; that the land worked by his children, the said claimants, had not been rented for said year and conld not be, and therefore unless worked by his said children would lay idle; that under the circumstances the judgment debtors, the father and mother, told the claimants, their children, that if they could arrange to get a mule to do the plowing and some one to supply the necessary feedstuff for the mule, they could work what land they wanted on the place and have the fruits of their labor; that accordingly claimants secured a mule from their uncle, and bought feedstuff with which to feed it, and made a crop producing the bale of cotton here involved, doing all the work themselves, except a little hoeing done by their mother.

As a general rule, a father is entitled to the services and earnings of his minor child. This results from his obligation to support them.. But it is a privilege which the father may waive at his pleasure, and he may waive it in full or partially, and his waiver, or emancipation as it is often denominated, may result from an express agreement to that effect, or it may be implied from conduct and circumstances, and when such emancipation takes place neither the parent nor his creditors will be permitted to assert any right to the subsequent earnings of the child so emancipated. In other words, the services of a minor is not property in the sense that as against the creditors of the parent the latter will not be permitted to give the child the future fruits of such services. The future services of a minor are not such an asset as that the debtor father will not be permitted to voluntarily divest himself of as against his creditors. Dick v. Grissom, Freem. Ch. 428; 29 Cyc. 673-675; 21 Ency. of Law (2 Ed.), 1061. Applying these principles to the facts as found by the chancellor, it follows, we think, that there was such an emancipation of said claimants by their parents as entitled the former to the crop raised by them of which the bale of cotton in question was a part.

Certainly a judgment debtor cannot make a gift of property to bis minor child and thereby defeat his creditor. If the evidence had shown that the leasehold of the land these claimants worked was of any value for the year 1922, there would be presented a different question. That would be property. There is nothing in the record, however, showing any value of the leasehold of the portion of the land worked by said claimants for 1922. On* the contrary, the evidence tends to show, as stated by the chancellor in his written opinion in the record, that the leasehold was of no value because, if said claimants had not worked the land, it would have lain out.

Affirmed.