(after stating the facts). A father can make la valid gift of his minor son’s services to himself so as to be beyond reach of his father’s creditors. Bobo v. Bryson, 21 Ark. 387; Fairhursi v. Lewis, 23 Ark. 435; Vance v. Calhoun, 77 Ark. 35; and Biggs v. St. L. I. M. & So. Ry. Co. 91 Ark. 122. 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. 20 R. C. L., pp. 610 and 611; Wilson v. McMillan, 62 Ga. 16, 35 Am. Rep. 114, and case note at p. 117; McCloskey v. Cyphert, 27 Penn. St. Rep. 220; Beaver v. Bare, 104 Penn. St. 58, 49 Am. Rep. 567 and cases cited; Wright v. Dean, 79 Ind. 407; Hall v. Hall, 44 N. H. 293; McDaniel v. Parish, 4 App. Cas. D. C. p. 213.
"While the general rule is that a father is legally entitled to the services of his minor child, it is equally well settled that a parent may voluntarily relinquish the right to his child’s earnings and may permit the child to receive and appropriate his earnings at pleasure. Where the father has emancipated his child, he is under no legal obligation, although he be insolvent, to claim such earnings for the benefit of his creditors. Therefore, the father may himself contract to employ and pay the child for his services and be bound in consequence like any stranger to fulfill his agreement.
But it is claimed that this principle has no application to the facts in the case at bar, because the cotton in question was covered by the mortgage given by the father to the Bank of El Paso. While this is true, the bank had a right to release or waive its mortgage on a part of the ■crop, and this is what the defendants claim was done. The father claims that he was unable to secure labor with which to make and cultivate a cotton crop on the whole forty acres, and the bank agreed that he might hire his minor son to help make and gather the crop and pay him for his services the cotton grown on ten acres of the land. The parties had a right to make this agreement, even though the father had covenanted in the mortgage that no member of his family might have any claim or lien against any part of the crop or other personal property described in the mortgage. Under the authorities cited it is settled that the father might hire his minor son just as he might employ any other person to help make and gather the crop. The fact that E. L. Baxter was the minor son of J. E. Baxter was a circumstance tending to show fraud or collusion in t'he matter. Fraud may be established by circumstantial as well as by direct evidence, but it is not to be presumed. If the form and design of the transaction may be traced to an honest source, under ia preponderance of the evidence, the transaction must be allowed to stand.
It is true that the cotton was carried away from the farm of J. E. Baxter in the night time, and this, coupled with the fact that E. L. Baxter was the minor son of J. E. Baxter, is a circumstance pointing to fraud and collusion. ‘Suspicious circumstances, however, can not outweigh positive proof in the premises. The fact remains that J. E. Baxter and both of his sons testified that Kent agreed that E. L. Baxter should be given the cotton grown on ten acres of the crop in consideration of his help in making and gathering the crop. They testified that E. L. Baxter worked in the crop all the year aiid did most of the work in making and gathering it. Their testimony that E. L. Baxter did most of the work in making and gathering the crop is uncontradicted. Neither is their testimony contradicted as to the fact that J. E. Baxter could not get any one else to make the crop. It is a matter of common knowledge that J. E. Baxter himself could not work the whole forty acres in cotton in a husbandlike' manner. It was necessary for him to have help from somewhere, and the undisputed facts show that his minor son did help him.
Upon a careful examination of all the facts of the case we have reached the conclusion that la preponderance of the evidence shows that the parties in good faith made an agreement that J. E. Baxter was to give his minor son, E. L. Baxter, the cotton grown on ten acres of the land in payment of his services in making and gathering the crop of cotton, and that Kent, as the representative of the Bank of El Paso, assented to this agreement. The proof shows that the cotton in question was grown on the ten acres allotted to E. L. Baxter as his part of the crop.
It follows that the decree will be reversed, and the cause .remanded with directions to dismiss the complaint for want of equity.