Imágenes de páginas

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 which 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. Under 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 up 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 forbear. ance 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 condemnation 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 uncontrol. lable 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 a 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

alleged to exist have now passed away. Hence the necessity of separating the mother and child has ceased to exist.

It is also claimed by respondent, that, when the mother placed the child in this institution, she promised that she should remain there until she was eighteen years old, and 424 that for that reason che is now estopped from demanding her custody. There are some cases which hold, that, where a child of tender years is given by a parent to another person, the parent cannot afterward assert his right to the con. trol and custody of the child. But this rule is founded on the tender and humane idea that by reason of the long and intimate intercourse between the child and the foster parent a reciprocal affection has sprung up which ought to be respected, and which it would be cruel and heartless to interfere with by a forced separation. But no such principle can apply here. The respondent in this case is a corporation; it is controlled and its business is done by officers who are con. stantly changing-at least, who may be constantly changing. It is a universally accepted proposition that a corporation has no soul. It is not disturbed in any of its operations by sentiment, and cannot, therefore, be allowed to plead a senti. mental wrong.

Under all the circumstances of the case we think that the writ should have been sustained. The judgment will, therefore, be reversed, and the cause remanded with instructions to award the custody of the said Maggie Lovell to the appellants.

STILES and ANDERS, JJ., concur.
Hoyt and Scott, JJ., concur in the result.

PARENT AND CHILD-Right OF PARENTS TO CESTODY OF MINOR CHILD. It is the strict legal right of the parents and those standing in loco parentis to have the custody of their infant children as against strangers; but the court will not regard this as controlling when it would imperil the personal safety, morals, health, or happiness of a child: Richard v. Collins, 45 N. J. Eq. 283; 14 Am. St. Rep. 726, and note. A father is prima facie entitled to the control of his minor child, and before this right can be taken away the reasons for doing so must be obvious and satisfactory, and established beyond doubt: Miller v. Wallace, 76 Ga. 479; 2 Am. St. Rep. 48, and note. When a father is a suitable person he is entitled to the custody of his minor child, but, if a sufficient reason exists why he should not have its custody, it will be given to others better fitted: Brooke v. Logan, 112 Ind. 183; 2 Am. St. Rep. 177, and extended note. For a further discussion of this question, see the recent cases of Cunningham v. Barnes, 37 W. Va. 746; 38 Am. St. Rep. 57, and note; and Marshall v. Reams, 32 Fla. 499; 37 Am. St. Rep. 118, and note,



by a creditor to forbear the enforcement of his debt is not a sufficient consideration to support an oral promise of a third person to pay that debt, although such third person makes the promise for the purpose of

subserving and promoting his own pecuniary interests. STATUTE OF FRAUDS-PROMISE TO PAY DEBT OF ANOTHER.-A considera.

tion to support an oral promise to pay the debt of another to be valid must be of a peculiar character, and must operate to the advantage of the promisor, and place him under a pecuniary obligation to the prom. isee independent of the original debt, which obligation is to be dis charged by the payment of that debt. Strudwick & Peters, for the appellant. Carr & Preston and W. R. Bell, for the respondent.

443 SCOTT, J. The material allegations of the complaint in this case are, that, on the first day of August, 1890, one Almond was indebted to the plaintiff in the sum of fourteen hundred and twenty-five dollars, and that 'said Almond, doing business under the name of Almond & Phillips Foundry Company, was indebted to 444 defendant in the sum of fourteen thousand dollars, and that said Almond was then the owner and in possession of a certain leasehold interest in and to certain premises described, and was the owner of a certain foundry and machine-shop plant of the value of thirty thousand dollars. The fifth and sixth paragraphs of the complaint are as follows:

“5. That on the twenty-first day of August, 1890, the said Charles H. Almond, doing business as aforesaid, conveyed to one Jocob Furth, the cashier and manager of the defend. ant, for the use and benefit of defendant, all of said plant, property, stock on hand, lease, and accounts, and the de fendant accepted the same and went into the possession thereof, through one G. L. Faust, who became and was appointed by defendants its general agent and manager in that behalf."

“6. That said defendant took and accepted said convey. ance and assignment, and entered into the possession of said property, with a view and intention of paying off and discharging all the debts of said C. H. Almond, for the purpose of subserving and promoting its own pecuniary and business interests; and said defendant proposed, for the purpose afore

said, to the plaintiff and others of the creditors of said C. H. Almond, that if said creditors would forbear the collection of their said debts against said C. H. Almond, and would accept payment thereof from defendant in deferred installments, that defendant would pay off and discharge said debts, and plaintiff and others of said creditors of said C. H. Almond accepted said proposition of defendant and forbore the collection of their said debts."

The court sustained a demurrer to the complaint, and plaintiff appealed.

We are of the opinion that the demurrer was well taken, on the ground that the promise alleged was void under the statute of frauds, it being conceded that it was not in writing. A logical construction of the complaint is that Almond transferred said property to the defendant in consequence of his indebtedness to the defendant, and that the 445 promise made by defendant to plaintiff was made after the execution of said conveyance and delivery of the possession of the property, and was no part of the consideration for said transfer.

The great weight of authority, certainly, is to the effect that the agreement of a creditor to forbear the enforcement of his debt is not a sufficient consideration to support an oral promise of a third person to pay that debt, and this is not disputed by the appellant; but he contends that the promise was made for the purpose of subserving and promoting respondent's own pecuniary business interests. The most favorable construction that can be put upon the allegations of the complaint in this respect is, that defendant was of the opinion that the payment of Almond's indebtedness to the plaintiff would subserve the defendant's interests. That the defendant had an idea that such payment would benefit it in some way, although what it was founded upon is not apparent. Yet this was not the consideration for the promise, nor any part of it. The bank already had the property, and had made no promise to pay the plaintiff's debt to obtain it. The obligation, if any, upon the part of the defendant to pay the plaintiff's claim arose only upon its promise made to the plaintiff. The consideration for said promise was the forbearance of the plaintiff to proceed against Almond. The promise would have been sufficient to sustain the action were it not for the statute. Any promise to pay, whether in writing or not, must be founded upon a consid

« AnteriorContinuar »