Brown's Appeal

Mr. Justice Mercur

delivered the opinion of the court,

This is a case of the distribution'of the proceeds of the sheriff’s sale of personal property. The contention is as to the validity of the judgment in favor of the appellant against John Brown. The auditor found it in law fraudulent and void. The court overruled all the exceptions, confirmed the report, and decreed that the fund be paid on subsequent executions. From that decree this appeal was taken.

The fund for distribution is $772.90. The judgment of the appellant is $1500. It was on a judgment-note executed and entered of record on the 13th December 1876. Execution was issued thereon, and put in the hands of the sheriff on the same day. The levy was made on the day following. This execution was first in order of time. The consideration of the judgment was services rendered by the appellant to his father, John Brown. $1000 thereof for services while he was a minor, and $500 for services after he was of full age.

That a father may so manumit his son as to authorize him to contract with an employer, and receive his earnings to his own use, is well established: Galbraith v. Black, 4 S. & R. 207; United States v. Mertz, 2 Watts 406. He may do this, although he be insolvent: Holdship v. Patterson, 7 Id. 547. Although he be legally entitled to the wages of his minor son, he is not bound to claim them for the benefit of his creditors: McCloskey v. Cyphert, 3 Casey 220. In this last case it was said by Mr. Justice Black, “ This emancipation of the son from the father’s control may be as perfect where they both live together under the same roof as if they were separated. The father’s renunciation of all legal right to the son’s labor is not the less absolute because other family ties continue unbroken.” He may so relinquish his right to the services of his minor son that he cannot re-assert that right either against’ the son or other person: Torrens v. Campbell, 24 P. F. Smith 470.

The uncontradicted evidence shows that in the spring of 1861, when the appellant was sixteen years old, he was negotiating with one Harris to learn a trade. His father was unwilling that he should leave home, and proposed, if he would not go, but remain ' with him, until he became of age, that he, the father, would give the appellant $1000. The son assented to this, and remained. This agreement is sworn to by both father and son, and by Mendenhall Brown, a brother- of John’s, who was present at the conversation, and heard the arrangement. Harris testified that in conversation he had that same spring with the father, in relation to the proposed bargain between the son and the witness, the father said he had arranged with his son to stay with him, and that he, the son, was to have $1000. The appellant afterwards made the same statement to the witness. About the same time William McFarlan swears the son informed him of this arrangement, and John D. Dorian swears the father told him the same. The evidence of an agreement to pay for the appellant’s services after he became of age is not so strong, nor need it be, as the father was not then entitled to. his wages. Mendenhall Brown swears that when the bargain was' made in 1861, the father told the appellant that after he became twenty-one, he would pay him what other people paid. The appellant testifies: “The spring I reached twenty-one years of age I had an agreement with my father. He agreed to give me as much as anybody else would give me if I staid on with him. * * * I went to work. * * * The wages in the neighborhood at that time were $225 to $240 per year.” lie continued in the service of his father seven years after he became of age, leaving in 1873. He further testified that when he left in 1873 it was agreed that these services should be $500, and his father agreed to allow him that sum. The father swore that he then thought, and always has since the work was done, that his services were worth more than $500.

No witness contradicts these facts sworn to in behalf of the appellant’s claim. The auditor does not find they are not proved. On the contrary, he says “ he has treated the testimony of Samuel P. and John Brown * * * as true.” He appears to base his conclusion that the judgment is “in law, fraudulent and void,” on other grounds. He rests it mainly on the circumstances under which the judgment-note was given. It is shown that then, John Brown was largely indebted, and far beyond his ability to pay. That he and the appellant expected other executions would be issued against the former, in a few days: and that this judgment was given with the intention of enabling the appellant to issue execution, in advance of those likely to be issue by other creditors. If, however, the consideration was honest and the debt justly due, it was, no fraud on the other creditors to thus prefer the appellant. Except as against a bankrupt law, a debtor may prefer one creditor to another, and such preference -is not fraudulent either in law or in fact: Uhler v. Maulfair, 11 Harris 48; Hart v. Covenhoven, 9 Id. 327; Hopkins v. Beebe, 2 Casey 85. A debtor may even prefer a bona fide creditor, by a confession of judgment, although the claim was not enforceable at law: Keen v. Kleckner, 6 Wright 529. It therefore follows that undue effect was given to the fact that the judgment was confessed with a view of giving the appellant a preference over creditors. In so holding, it is not necessary to impair any of the authorities declaring the eifect that should be given to an auditor’s finding of facts: but we dissent from the legal conclusions deduced from those facts. All the facts found, did not justify the conclusion that the judgment was “ in law, fraudulent and void.”

The auditor has not found at what time, the debt due to any of the appellees, originated. A careful examination of the evidence fails to show, that in 1861, or 1866, or 1873, when John Brown made these several contracts with the appellant, that he was indebted to any other person who could bé injured thereby. As then no just cause is shown for postponing the claim of the appellant, all reason for imposing the costs of the audit on him is removed.

Decree reversed at the costs of the appellees; and it is now ordered, adjudged and decreed that the costs of the audit be paid out of the fund, and the residue thereof, to wit, $678.90, be paid to the appellant on fi. fa. No. 57, January Term 1877.