Manly v. Bitzer

• Decision Date: 06 June 1891
• Citation: 16 S.W. 464,91 Ky. 596
• Parties: MANLY v. BITZER et al.
• Court: Kentucky Court of Appeals

16 S.W. 464

91 Ky. 596

MANLY v. BITZER et al.

Court of Appeals of Kentucky.

June 6, 1891

Appeal from Louisville chancery court.

"To be officially reported."

Helm &amp Bruce, for appellant.

Kohn Baird & Speckert, for appellees.

HOLT C.J.

This is a controversy over the wages of Frank Manly, as a policeman of the city of Louisville. It is between a creditor and a purchaser. The claims of both are bona fide. The former, the appellant Mary Manly, having a judgment for her debt, and a return of nulla bona, sued out attachments during several months, and garnished the wages of Manly in the hands of the city. He had, however, on or near the 1st of each month, and prior to the attachment in each instance, sold the claim for the wages of that month to the appellee Peter Bitzer. In one instance the sale was on the 2d day of the month, and when Manly had earned one day's wages. In another it was on the 4th day of the month, and when three days' wages were owing; but in all the other cases it was made on the 1st day of the month, and was a sale of the then unearned wages of that month. The claim of the purchaser to them is not resisted by Frank Manly. The policemen of the city are elected by the police commissioners for a term of four years, and until their successors shall be chosen. They are paid at the rate of two dollars per day for the days they in fact serve, payable at the end of each month upon monthly pay-rolls. It is a per diem allowance but payable monthly. The services are rendered under a contract for four years' service. It is contended for the appellant that assignments of wages to be earned are, like mortgages of property to be thereafter acquired, void. It is insisted, upon the other hand, that, as these wages were to be earned under an existing contract, the wage-earner had the right to assign them and that this contest is merely one of equities, in which the elder must prevail. This is undoubtedly true if the right existed, because in a contest between equities merely that which is prior must in reason be given the preference. Newby v. Hill, 2 Metc. (Ky.) 530. This elementary rule is not questioned by the counsel for the appellant; but they insist that the appellee, by his purchase, acquired no equity whatever as against a creditor of Manly. Looking at the question from the standpoint of public policy, there are two views presented, which perhaps balance each other. If the wage-earner, in a case like this one, be permitted to sell and transfer his unearned wages, the honest creditor may sometimes be defrauded; but, upon the other hand, it may often be necessary to the subsistence of the laborer and his family, as is claimed was true in this instance. It is a general rule that a mortgage of property to be acquired in futuro is void as against the mortgagor's other creditors. It has been held by this court, for instance, that he cannot mortgage not only his stock of goods on hand, but also those he may thereafter add to it. As to those so added the mortgage is invalid as against other creditors. Ross v. Wilson, 7 Bush, 29; Loth v Carty, 85 Ky. 591. ^[1] Also that a mortgage of a crop unsown when it was executed is invalid as against a purchaser for value, the reason being that when the mortgage was given the crop had neither an actual nor a potential existence. Hutchinson v....