Opinion
July Term, 1899.
Francis A. Smith, for the appellant.
A.W. Boynton, for the respondent.
The evidence is not very satisfactory, but there is enough to sustain the finding of the trial court that the judgment debtor, Elijah S. Kemp, did not pay or furnish to be paid any portion of the consideration of either of the two lots. The trial court further found that the money was paid by the grantee in the deeds, Lucretia Kemp, and was furnished to her for that purpose from time to time by the minor son of Elijah S. and Lucretia Kemp from his gains and earnings while he was a minor boarding with his said parents without charge for board and working as clerk and stenographer for wages in the employment of J. J. Rogers; that the son made his own contracts with his employers, was paid by them, and that none of his wages or other income was ever claimed by his father or came into his possession. It appears that, without challenge or remark, the father permitted his son to act for himself and earn and make what money he could.
The plaintiff contends that such money was the father's, and that as it can be traced to the lots bought in the name of the mother at a time when the father was indebted to the plaintiff, to the knowledge of the mother, in the sum for which the plaintiff has since obtained judgment against the father, the inference of fraudulent intent follows; and that as the plaintiff's equity is better than the mother's, he can enforce his judgment by recourse to the lots, in default of the wife's protecting them by paying the judgment. Only a small part of the consideration was paid at the time of the conveyances, but the greater part was paid later.
The learned counsel for the plaintiff disclaims reliance upon the statute which provides that where the grant is to one and the consideration paid by another, "every such conveyance shall be presumed fraudulent as against the creditors at that time of the person paying the consideration, and where a fraudulent intent is not disproved a trust shall result in favor of such creditors to the extent that may be necessary to satisfy their just demands." (1 R.S. 728, §§ 51, 52.)
We need pass only upon the single question whether the money obtained by the minor son and furnished to his mother and by her paid upon the lots, was the father's money.
The general rule is that the father, in consideration of his obligation to support his minor child, is entitled to the wages the latter may earn in the service of another. The father can waive that right either by emancipation or by consent, and thereupon the child becomes entitled to his own services and wages. The intention of the father to emancipate his child or to consent to his receiving his own wages may be inferred from circumstances indicating satisfactorily such intention. ( Shute v. Dorr, 5 Wend. 204; Canovar v. Cooper, 3 Barb. 115; Maltby v. Harwood, 12 id. 475.) Before the statute of 1850, hereafter quoted, it was sometimes difficult to determine whether the right of action for the minor's wages remained in the father or had become vested in the child. Chapter 266, Laws of 1850 (re-enacted by § 42 of chap. 272 of the Laws of 1896) was evidently intended to remove to some extent the liability to doubt and to conflicting claims respecting the earnings of a minor child. This provides that "It shall be necessary for the parents or guardians of such minor children as may be in service to notify the party employing such minor within thirty days after the commencement of such service, that said parent or guardian claim the wages of said minor, and in default of such notice payment to such minor shall be valid."
In the absence of notice by the father, the payment to the minor was valid, and his title to the money was valid. The father neither acquired the possession, nor right of possession, of these wages and they never were his. (See Stanley v. National Union Bank, 115 N.Y. 122.)
As to whatever moneys the minor gained by purchases of property and sales at a profit, the father never had any title. ( Banks v. Conant, 14 Allen, 497.)
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.