Bently v. Terry

• Decision Date: 31 August 1877
• Citation: 59 Ga. 555
• Parties: James A. Bently et al, plaintiffs in error. v. O. T. Terry et al.,defendants in error.
• Court: Georgia Supreme Court

59 Ga. 555

James A. Bently et al, plaintiffs in error. v. O. T. Terry et al., defendants in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

Parent and child. Contracts. Habeas corpus. Before Judge Hansell. At Chambers. Brooks County. June 1, 1877.

Reported in the opinion.

J. G. & W. C. McCall, for plaintiffs in error.

W. G. Turner, for defendants.

JACKSON, Judge.

Mrs. Bently and Mrs. Terry are sisters. The latter has no children. When Mrs. Bently was sick and had lost a *child, perhaps two, Mrs. Terry took the little daughter of her sister home with her, and nursed the child, who was sick, into vigor and renewed life. She kept the child some five years; sick for some time after she took her; delicate up to a year or two ago; has supported her comfortably and kindly all the time, without help from the little girl's parents. The child is now some eight years old, and was taken by Mrs. Terry when but two or three years old, and almost lifeless. The parents of the child now want the daughter back, and sued out a writ of habeas corpus for her; the judge decided in favor of the retention of the little girl by her aunt, Mrs. Terry. Mr. and Mrs. Bently, the parents, except to that judgment, and the case is before us for review.

In regard to the terms on which the child was taken by Mrs. Terry, the evidence is conflicting. The Terrys prove that the child was given to Mrs. Terry by Mr. Bently, by their own evidence and that of others. The Bentlys swear the contrary, and produce witnesses to show the contrary. The probabilities are that they may have misunderstood each other. However that may be, the judge below 1 as passed upon the evidence, and he had a right to do so in case of conflict.

1. If the contract was made by Mr. Bently with Mrs. Terry, as she asserts, and tries to prove, there can be no doubt that he had power to dispose of the child. Section 1793 of the Code settles the point. It declares that "parental power is lost: 1. By voluntary contract releasing the right to a third person." This is precisely what Mr. Bently did in this case, with his daughter, according to Mrs. Terry's version of the agreement.

2. But it is said that there was no consideration for the contract, and that Mrs. Terry, being a married woman, couldnot make it. We think that the agreement to take the child home and nurse and care for the little girl as her own, is a sufficient consideration to support such a contract, especially as it has been executed for five years on the part of *Mrs. Terry. Nor do we think that she could not make such a contract under the circumstances of this case. Her husband acquiesces in it. He joins her in defense of this suit. He...