#### Doe on the demise of THOMAS D. WINCHESTER v. DAVID N. REID.

Where a.father, who was largely indebted and insolvent, made a deed for his land to his son, who was under age and received from him money, which ho had earned as day wages, in part payment, and his note for the remainder of the price, such deed was held to be voluntary and void as against creditors.

This was an action of ejectment, tried before French, J., at the last Spring Term of Union Superior Court.

The plaintiff’s lessor claimed title under a purchase at sheriff’s sale, made in 1813, by virtue of judgments and executions against Eobert Porter, in favor of IT. M. Houston and others, creditors of the said Eobert.

The defendant claimed title to the premises, in controversy, under a deed, made by Eobert Porter, dated 25th of October, .1812, to Hugh Porter, who conveyed to David Moore, and he to his daughter, Clarinda, the wife of the defendant, Eeid.

John N. Porter, a witness for the defendant, testified that he was the son of Eobert Porter and the brother of Hugh Porter, another son of the said Eobert; that at the time the said deed was made by Eobert Porter to Hugh Porter, the latter was over twenty years of age, but under 21; thathe (Hugh) paid his father $250 in money, and gave his note for $50, the residue of the purchase-money ; that the said Hugh, prior to the exe*378cutiera of this deed, had worked at a gold mine for some two or three years at from seventy-five cents to a dollar per day, and that he had no property other than these earnings ; that after the deed was made, it was agreed between Hugh and his father, that the latter, with his wife, might live with Hugh on the premises, until he (Robert) could get a place for himself, or until Hugh might sell the land; that Hugh took immediate possession and worked the land for four years, his father and mother living with him, at the end of which time, he sold to Moore. This witness gave it as his opinion that the land was not worth more than $300. Another witness stated that the land was worth $400.

It was in evidence, that the debt to Houston, who was the plaintiff in one of the executions, under which the land was sold, was in existence at the time the deed to Hugh bears date, (October, 1842,) and that independently of the land in question, the said Robert was insolvent.

The counsel for the plaintiff contended, that the facts of the relation of the parties, the minority of the son, that only $250 was paid for land worth between $300 and $400, the note for $50 having no validity, the possession of the land by the debt- or after the sale and his insolvency, rendered the deed fraudulent and void, and asked the Court so to instruct the j ury.

The Court instructed the jury, that if John N. Porter was not believed, there was a presumption of fraud, and this fraud was not rebutted, so that the plaintiff would be entitled to a verdict; that if John N. Porter was believed, the estate of Robert Porter, in the land, passed by the deed, unless they were satisfied, from the evidence, that there was fraud; of which, in that event, they were the sole judges. Defendant’s counsel excepted.

Yerdict and judgment for the defendant, and appeal by the plaintiff. •

Wilson, for the plaintiff.

No counsel appeared for the defendant in this Court.

*379Pearson, C. J.

What amounts to fraud is a question of law. His Honor erred in declining to explain to the jury what is considered, in law, such a fraud as makes a deed void against creditors, and in telling them, on the contrary, that “ if John N. Porter was believed, the deed was valid, unless they were satisfied that there was fraud; of which, in that event, they were the sole jtodges” which was saying, in effect, that if John N. Porter was believed, they should find for the defendant.

A father is entitled to the services of his child until he arrives at the age of twenty-one; Musgrove v. Kornegay, 7 Jones 71. It is true, a creditor cannot make his debtor work in order to pay the debt, nor can he force him to make his children work, or sell, under execution, the valuable interest which a father has in the services of his child, or which a master has in the services of an apprentice. But if, in fact, a child does work and earn wages, the proceeds of his labor belong to his father, and if the father invests the money so earned, in the purchase of land, taking the title in the name of the child, the father being insolvent, his creditors can subject the land to the payment of their debts ; Worth v. York, 13 Ire. 206. Therefore, when Hugh Porter worked at the gold mine, his wages belonged to his father, and he was bound, as an honest man, to have taken the money and applied it to the payment of his debts instead of attempting, under the color of this money, which was his own, to pass his land into the hands of his son ; so as to secure a home for himself and wife, and put the land out of reach of his creditors. A father, who is not in debt, or who retains property “ amply sufficient to pay his debts,” may give his child the proceeds of his labor before he is twenty-one years of age. So, he may give him money or land. But if the father be insolvent, that alters the case, for the law requires men “to be just, before they are generous.” So he has no right to give his son money, although his son may have earned it as day wages, and if he pretends to sell him land for this money, it is, in legal effect, handing to the son the father’s own money, so as to let him hand it back *380again- in the presence of witnesses as the consideration of the deed. In other words, the deed is voluntary and void against creditors.

So,, if a father, who is about to fail, conveys property to* a.n infant child and takes his notes for the consideration, the conveyance is treated as voluntary and void against creditors; for the child may avoid his notes and, therefore, in legal effect, they amount to nothing; Hammond v. McCorkle, 2 Jones 444.

In the case under consideration, the defendant’s witness,. John N. Porter, proved that his father was insolventthat his brother, Hugh, was under age and had no property ; that he had worked at the gold mine two or three years by which he earned seventy-five cents or a dollar a day, and handed.his father $250 in money and gave his note for $50, the residue of the price agreed on, and that his father and mother continued to live on the land with- him until he sold it..

Upon, this evidence, we think the plaintiff was entitled to-the instructions prayed for in respect to. the question of fraud-:. Indeed, his Honor could not have more accurately and aptly conveyed to the minds of the j ury the- idea of what, in law,, amounts to fraud against creditors, than by telling them that the evidence, if believed, raised a presumption of fraud, and, there being no evidence to rebut this presumption, it was. their duty to find the deed fraudulent.. As a precedent for a. charge of this character, several recent,, as well.as older cases,, would have fully sustained him.; e.. g. Jessup v. Johnson, 3, Jones 335 ; London v. Parsley, 1 Jones 313, in which cases, this direct and pointed mode* of instructing-a jury on* questions of fraud-, as upon, a demurrer to- evidence, is approved, and recommended. There- is error... Y'onire de novo.

Pee Cubiam;

Judgment reversed-,.