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brought. It further appeared that in such foreclosure suit there was no personal service upon the appellants, that they were nonresidents of the state, and never appeared therein.
The alleged errors of the trial court are argued under ses. eral heads, but the material question involved in the entire discussion is as to whether or not, under the circumstances above stated, there was such a merger of the original cause of action that no suit could be maintained thereon here. If there was such a merger, then the rulings of the trial court were clearly erroneous, and the judgment should be reversed. If there was no such merger then the judgment should be affirmed. That a cause of action is merged in a judgment rendered thereon may be stated as a general rule, and it is because of this rule, and of the fact that it is applied as well in the case of foreign as domestic judgments, that the appellants contend that this action could not be maintained. But to this general rule there are well-recognized exceptions or liinitations, and one of these is that it is a merger only so far as the judgment determined, or might have determined, the rights of the parties. From which it will follow that the judgment in the state of Kansas was only a merger of the cause of action upon the bond so far as the enforcement thereof against the real estate was concerned. The judgment was only binding to that extent, and had no force against the appellants personally or their property not covered by said mortgage. The rights of the appellants to make any defense that they might have to said bond 357 were in no manner concluded by such judgment. Hence, , under the exception or limitation above stated, there was no merger of the right to maintain a personal action against these defendants upon the original undertaking: See 15 Am. & Eng. Ency. of Law, sec. C, p. 340; McVicker v. Beedy, 31 Me. 314; 50 Am. Dec. 666; Middlesex Bank v. Butman, 29 Me. 19. Of course the amount of the bond could be collected but once, and to the extent that money was realized in the proceeding in Kansas it would constitute a payment of the undertaking, and only the balance could be recovered here, and that is all that was sought in this action.
The appellants attempted to prove the value of the land against which the foreclosure proceedings were had, and alleged error because they were not allowed to do so, but, in the absence of an allegation of fraud by reason of which the land had been sold for less than its value, it was immaterial whether it was worth more or less than the amount obtained for it.
The judgment will be affirmed.
MORTGAGES-FORECLOSURE-JUDGMENT FOR DEFICIENCY.-If a judgment has been entered against a nonresident foreclosing a inortgage, such judg. ment being based on constructive service of process, an action may be maintained agaiust the defendant to recover the amount of the deficiency remaining after such sale: Blumberg v. Birch, 99 Cal. 416; 37 Am. St. Rep. 67. A balance due after the foreclosure of a mortgage in equity may be recovered at law by a suit on the bond: Globe Ins. Co. v. Lansing, 5 Cow. 380; 15 Am. Deo. 474. A mortgagee may have in a foreclosure suit a decree for the deficien against the grantee of the mortgagor, where the grantee has covenanted in his deed from the mortgagor to pay off the mortgage: Klap. worth v. Dressler, 13 N. J. Eq. 62; 78 Am. Dec. 69. Where equity has power to enforce a mortgage, and a sale is ordered, a decree in personam will be entered for any balance that remains due: January v. Januarg, 7 T. B. Mon. 542; 18 Am. Dec. 211. In an action for the foreclosure of a mortgage no personal judgment for any part of the debt can be rendered against the mortgagor on his bond until after the sale, and then only for the deficiency reported to be unpaid: Hull v. Young, 29 S. C. 64. Where mortgaged premises are all sold to satisfy a first installment due upon the mortgage the court cannot enter up a personal judgment against the mortgagor for a subsequent installment when it becomes due: Bliss v. Weil, 14 Wis. 35; 80 Am. Deo. 766, and note.
LOVELL v. HOUSE OF THE GOOD SHEPHERD.
[9 WASHINGTON, 419.) PARENT AND CHILD-Right to Custody.-A charitable corporation having
no legal right to the custody of a minor child cannot retain such cas. tody as against its parents, no matter whether they are proper custo
dians or not. PARENT AND CHILD—RIGHT OF PARENT TO CUSTODY.-Before parents can
be deprived of the custody or comfort of their minor child a case must be made which is sufficiently extravagant, singular, and wrong to meet the condemnation of all decent and law-abiding people, without regard
to religious belief or social standing. PARENT AND CHILD--Right or PARENT TO CUSTODY.-The fact that the
mother of a minor child is a passionate, coarse, vulgar, and pugnacious woman, and that the father is addicted to the excessive use of intoxi. cants, and has other debasing habits, is not sufficient to deprive them
of the custody of the child. PARENT AND CHILD-RIGHT to Custody-ESTOPPEL.-If a charitable cor.
poration has no legal right to the custody of children placed in ito charge a mother who has placed her minor child in charge of such in. stitution, under a promise that the child should remain there until eighteen years of age, is not estopped to assert her right to the custody and control of the child at any time before it arrives at such age.
Hays & Humphrey, for the appellant.
420 DUNBAR, C. J. This case is brought to this court on appeal from an order of the superior court of King county, to reverse and set aside the order of the judge of that court, sitting in equity, dismissing a writ of habeas corpus heretofore brought, and remanding the child, Maggie McGee, otherwise called Maggie Lovell, to the care of the respondent, House of the Good Shepherd, until the further order of the judge of the superior court of King county. About three years before the bringing of this action said Maggie Lovell was left by her then widowed mother with the respondent on an indefinite oral agreement. Soon after the mother demanded the child, but the respondent refused to give her up, and has ever since held her. On the seventeenth day of May, 1893, the appellants, Maggie Lovell's mother and stepfather, duly adopted the said Maggie by order of the superior court of Pierce county, Washington. After the adoption of said child, and before the bringing of this action, her custody was demanded by the appellants, but respondent refused to give her into their possession.
Respondent is a corporation established, among other things, to care for and educate orphans and deserted children. The institution is incorporated under the laws of the state of Washington, and is conducted by the sisters of the Roman Catholic faith, who devote their lives to this work.
It is alleged by the appellant that the court erred in permitting any evidence tending to show that appellant John Lovell was not a fit and proper person to have the care and custody of the child, because such evidence, if proper, 421 should have been pleaded, and there was nothing in the pleadings to put the competency of the said Lovell in issue. Respondent insisted that in proceedings of this character courts are not restricted to the same stringent rules of evidence which govern them in trials by jury; that the exact truth should be sought out by all practicable means, and mere technicalities should be discountenanced and set aside. This is true in any case, and technicalities under our code which tend to prevent the meritorious adjudication of the case are not favored. But the object of rules of pleading is to elicit the exact truth, and it seems to us that no litigant can safely go to trial without knowing substantially the issues that are involved; and if he is not informed by the pleadings it becomes something more than a mere technical omission wbich should be disregarded; but the court, by compelling him to submit his cause on such pleadings and without such information being furnished him, deprives him of a substantial right. Whether, however, we would reverse this case on this ground alone we will not now decide, for it seems to us that on the merits of the case there was no showing made by the respondent, or any attempt to show any legal right which it had to the custody of the minor child; and, if it had no legal right to the custody of the child, it matters not whether the parents were competent custodians or not, so far as the respondent is concerned: Church on Habeas Corpus, 1st ed., Bec. 454, p. 591; Bustamento v. Analla, 1 N. M. 255. Une der such circumstances the possession should be taken from it; and if, upon a proper petition, the appellants are found by the court to be incompetent a proper guardian should be appointed to take control of the custody and education of the minor. This the law provides for, but it nowhere providesnor would such a provision be practicable-for the appointing of a corporation as the guardian of a minor child. This being true, 492 there is no foundation for the claim of the respondent, and the writ should have been enforced.
We have carefully examined the testimony in this case, and are not satisfied that such a showing is made out against the parents as ought to deprive them of the custody of their cbild. While it is true that the welfare of the child should be the first consideration of the court, yet the right of the parent is not to be disregarded, and it is assuming a grave responsibility to deprive parents of the care, control, custody, and education of their children because they do not come op to the standard of perfection that we have established for our own action in that respect. There is, perhaps, scarcely a
. , day but that children may be seen who, in the ordinary estimation, are neglected, and of whom the popular verdict would declare that they would be better off and stand a better chance of becoming useful members of society if they were removed from the pernicious influence of their parents. Yet it would not do for that reason to interfere with the domestic relations, or to set up our particular standard for the guidance of families in general. There is such a diversity of religious and social opinion and of social standing and of in
tellectual development and of moral responsibility in society at large, that courts must exercise great charity and forbearance for the opinions, methods, and practices of all different classes of society; and a case should be made out which is sufficiently extravagant and singular and wrong to meet the condemn nation of all decent and law-abiding people without regard to religious belief or social standing before a parent should be deprived of the comfort or custody of a child. It is doubtful, in our minds, if such a case is made out here. It is true that the appellant, Mrs. Lovell, has not been the most exemplary mother; that the care of her children has not been of that kind which would commend itself to many mothers; that she is a passionate woman with an uncontrollable 423 temper, coarse, vulgar, and pugnacious, is evident from the record; but if every coarse, vulgar, and passionate woman were deprived of the custody of her children our orphan asylums would be filled to overflowing; and if every man who is given to brutalizing himself by the excessive use of intoxicants, and by other debasing habits, were to be deprived of the custody of his children the said institutions would be found altogether inadequate.
Even immorality of the mother is not always & sufficient reason for depriving her of the custody of her child. It is the universal holding of the courts, and in many states is made a provision of the statute, that the mother of an illegitimate child, in the absence of special reasons, is entitled to its custody, and of course the fact of its illegitimacy is proof of the mother's immorality. The maternal instinct can generally be relied upon to protect the child far better than strangers who act simply from a cold and unsympathetic feeling of duty to society. Of course, when it becomes apparent that nature's appeal to the parental heart meets with no response, and a parent has become so brutalized and lost to the promptings of nature that she is willing to sacrifice either the physical or moral well-being of her children to the gratification of her own debased propensities or vicious habits, it becomes the imperative duty of the court to reach forth its hand for the protection of the children. But, as we have before said, we do not think the result in this case shows & necessity for judicial interference; and, even though it may appear that three years ago the mother was not a competent person to maintain control of this child, the difficulties then