Hibbette v. Baines.

Decision Date17 December 1900
Citation78 Miss. 695,29 So. 80
CourtMississippi Supreme Court
PartiesLULA HIBBETTE ET AL. v. GEORGE W. BAINES. [*]

October 1900

FROM the circuit court of Attala county. HON. W. F. STEVENS Judge.

Baines the appellee, was the petitioner or plaintiff in the court below; Mrs. Hibbette and others were defendants there. The opinion states the facts of the case, which was a proceeding by habeas corpus for the custody of petitioner's children.

Judgment affirmed.

A. A Armistead, Green & Green, and S. S. Calhoon, for appellants.

Where are the happiness and welfare of the children? With their blood relations who have watched, cared for, trained, and educated them for years, and grown devotedly attached to them, and the children to their blood relations, who have known no other mothers; or with a bankrupt father, who has surrendered them for ten years, and a stranger stepmother who has expressed no desire to have them, and through whom all their comforts and advantages must come? If there was a contract with the appellants as to the custody of the children, acted on for ten years, the appellants are entitled to the custody of the children. The common law rule as to the right of the father to the custody of the children was repealed by the code of Mississippi, giving the chancellor the right to award their custody. Cocke v. Hannum, 39 Miss. 423; Foster v. Alston, 6 How. (Miss.), 461.

The father's right is not absolute. McShan v. McShan, 56 Miss. 413; 1 Parsons on Contracts, 310; Tyler on Infancy and Coverture, 275, 276, 283, 284; 2 Kent. Com., 195.

A voluntary contract to release infants to another is not revocable except for bad treatment. 9 Am. & Eng. Enc. L., 244-246; Anderson v. Young, 54 S. C., 388, S.C. 4 L.R.A. 277; 32 S.E. 448; 2 Kent. Com., 291, note a.

A voluntary placing of children by the father with grandparents (and aunts occupy the same attitude) continued, will not be disturbed. Fullilove v. Banks, 62 Miss. 11; Hurd on Habeas Corpus, 543, et seq.; United States, ex rel. Schneider, v. Sauvage, 91 F. 492; Pool v. Gott (Mass.), 14 Law. Rep., 269; Schouler on Dom. Rel. (5th ed.), sec. 251, note 4; State v. Smith, 6 Me. 462, S.C. 20 Am. Dec., Freeman's notes, 333-337; Re Goodenough, 19 Wis. 275; Kelsey v. Green, 69 Conn. 291, S.C. 38 L.R.A. 471; 37 A. 679; Sheers v. Stein, 75 Wis. 44, S.C. 5 L.R.A. and notes; 43 N.W. 728; Bently v. Terry, 59 Ga. 555, S.C. 27 Am. Rep., 399; Stringfellow v. Somerville, 95 Va. 701, S.C. 40 L.R.A. 623; 29 S.E. 685; Green v. Campbell, 35 W.Va. 698, S.C. 14 S.E. 212; Cunningham v. Barnes, 37 W.Va. 746, S.C. 17 S.E. 308.

If there was no contract, the ten years' acquiescence in the custody of the children with appellants, as first placed by the father, by which the affections and attachments of the children have become engaged towards their adopted homes and their aunts, will prevent the father from disturbing their relations on account of the happiness of the children. Schouler on Dom. Rel. (5th edition), secs. 256, 248, 251; Tyler on Infancy and Coverture, 275, 276, 283, 284; Hoxie v. Potter, 16 R.I. 374; 17 A. 129; Marshall v. Reams, 32 Fla. 499; 14 So. 95.

In states which hold contracts to surrender children void, the contract will not be ignored, but will be looked to to determine the happiness of the child, and if, under such contract, the children have remained until their affections and attachments have been engaged towards their adopted home, the father will not be heard or permitted to disturb them. Tiffany on Dom. Rel., 249, 253, note 59; Church on Habeas Corpus, 724, 725, secs. 444, 447.

The children have chosen their home, and they are of sufficient mental capacity and age to choose. Mental capacity, and not age, is the criterion for them to choose. Hurd on Habeas Corpus, 536; Cocke v. Hannum, 39 Miss. 423; 9 Am. & Eng. Enc. L., 246; Re Goodenough, 19 Wis. 275.

Would the minor's condition be improved? If not, the writ should be refused. This is a correct principle. Maples v. Maples, 49 Miss. 393; Cocke v. Hannum, 39 Miss. 423; Foster v. Alston, 6 How. (Miss.), 406; McShan v. McShan, 56 Miss. 416.

Just as soon as Bains received the twenty-five and one-half shares of Collier Drug Company stock from A. A. Armistead, which was the property of Rosa W. Bains, his little daughter, the dividend of which he had been appropriating under the guise of "G. W. Bains, Agent," he at once transferred twenty shares of this same stock to his wife and took five and one-half to himself, which he can hold as exempt under the laws of the state of Alabama, thereby destroying her estate; and if he can gain her custody it will never be heard of again. He is not entitled to her stock or any other of her property. Bedford v. Bedford, 136 Ill. 354; 26 N.E. 662; Schouler on Dom. Rel., sec. 255.

A man who permits the custody of his infant child to pass, in accordance with his wife's will, to her sisters, and allows the child to remain with and be reared and trained by them for five or six years, though supported by a provision for the children made by the mother, will not be allowed to reassert his rights to the custody of the child if it is not for the welfare of the child. Stringfellow v. Somerville, 95 Va. 701, S.C. 40 L.R.A. 623, S.C. 29 S.E. 685; Kelsey v. Green, 69 Conn. 291, S.C. 38 L.R.A. 471, S.C. 37 A. 679; Sheers v. Stein, 75 Wis. 44, S.C. 5 L.R.A. 781, and note, S.C. 43 N.W. 728; Green v. Campbell, 35 W. V., 698, S.C. 14 S.E. 212; Cunningham v. Barnes, 37 W.Va. 746, S.C. 17 S.E. 308; Re Snook, 54 Kan. 219, S.C. 38 P. 272; Com., ex rel. Berkheimer, v. Berkheimer, 4 Pa. Dist. Rep., 712; United States, ex rel. Schneider, v. Sauvage, 91 F. 492; Brown's Estate, 166 Pa. 253, S.C. 30 A. 1122; Bently v. Terry, 59 Ga. 555, S.C. 27 Am. Rep., 399.

The "unfitness" of the father in this kind of a case relates to the happiness of the child in his custody, and not to his personal character. Sheers v. Stein, 75 Wis. 51, S.C. 5 L.R.A. 781, S.C. 43 N.W. 728.

In the following cases restoration of custody to the father after release or abandonment was denied. Verser v. Ford, 37 Ark. 31; United States v. Green, 3 Mason, 482; Fed. Cas. No. 15,256; Warshaw v. Gimble, 50 Ark. 355, S.C. 7 S.W. 389; Marshall v. Reams, 32 Fla. 499, S.C. 14 So. 95; Smith v. Bragg, 68 Ga. 652; Bently v. Terry, 59 Ga. 555, S.C. 27 Am. Rep., 399; Janes v. Cleghorn, 54 Ga. 9; People, ex rel. Curley, v. Porter, 23 Ill.App. 196; Enders v. Enders, 164 Pa. 266, S.C. 27 L.R.A. 56, and note, S.C. 30 A. 129; Chapsky v. Wood, 26 Kan. 650, S.C. 40 Am. Rep., 321; Re Beckwith, 43 Kan. 159, S.C. 23 P. 164; Re Bullen, 28 Kan. 781; Ellis v. Jesup, 11 Bush, 403; State v. Smith, 6 Me. 462, S.C. 20 Am. Dec., 333; Com. v. Hammond, 10 Pick., 274; Curtis v. Curtis, 5 Gray, 535; Pool v. Gott (Mass.), 14 L. Rep., 269; Re Stockman, 71 Mich. 180, S.C. 38 N.W. 876; Corrie v. Corrie, 42 Mich. 509, S.C. 4 N.W. 2131; Weir v. Marley, 99 Mo. 484, S.C. 6 L.R.A. 672, S.C. 12 S.W. 798; McShan v. McShan, 56 Miss. 513; Foster v. Alston, 6 How. (Miss.), 416; Re Waldron, 13 Johns., 418; Re Murphy, 12 How. Prac., 513; People, ex rel. Johnson, v. Erbert, 17 Abb. Prac., 395; Spears v. Snell, 74 N.C. 215; Richarsds v. Collins, 45 N. J. Eq., 287, S.C. 17 A. 831; Sturtevant v. Stage, ex rel. Havens, 15 Neb. 459, S.C. 8 Am. Rep., 349, S.C. 19 N.W. 617; State, ex rel. Hodgden, v. Libbey, 44 N.H. 324, S.C. 82 Am. Dec., 223; State v. Barrett, 45 N.H. 15; Gishwiler v. Dodez, 4 Ohio St., 617; Clark v. Bayer, 32 Ohio St. 299, S.C. 30 Am. Rep., 593; Com., ex rel. Gilkeson, v. Gilkeson, 1 Phila., 194; De Hautville's case, cited in 6 How. (Miss.), 460; Hoxsie v. Potter, 16 R.I. 374, S.C. 17 A. 129: Jones v. Darnall, 103 Ind. 569, S.C. 53 Am. Rep., 545, S.C. 2 N.E. 229; Bryan v. Lyon, 104 Ind. 227, S.C. 54 Am. Rep., 308, S.C. 3 N.E. 880; Bonnett, ex rel. Newmeryer, v. Bonnett, 61 Iowa 199, S.C. 47 Am. Rep., 810, S.C. 16 N.W. 91; Drumb v. Keen, 47 Iowa 435; Ex parte Shumpert, 6 Rich. L., 347; Gardenhire v. Hinds, 1 Head, 402; Legate v. Legate, 87 Tex. 252, S.C. 28 S.W. 281; Coffee v. Black, 82 Va. 567; Stringfellow v. Somerville, 95 Va. 707, S.C. 40 L.R.A. 623, S.C. 29 S.E. 685; Merrit v. Swimley, 82 Va. 439; Green v. Campbell, 35 W.Va. 699, S.C. 14 S.E. 212; Cunningham v. Barnes, 37 W.Va. 746, S.C. 17 S.E. 308; Sheers v. Stein, 75 Wis. 51, S.C. 5 L.R.A. 781, S.C. 43 N.W. 728.

Noel & Pepper, for appellee.

An infant has no controlling legal right of election as to its custody. It was never designed to subject the legal right of custody to the caprice of infant children, nor to emancipate them from the rightful custody. Hurd, Habeas Corpus, ch. 8, 531; Moore v. Christian, 56 Miss. 408; 31 Am. Rep., 375.

Contracts for the disposal of children are not binding, being void as against public policy, according to the overwhelming weight of modern authority. Schouler, Dom Rel. (last ed.), sec. 251; Church, Habeas Corpus, sec. 444; 17 Am. & Eng. Enc. L., 373. The father is the natural guardian of his infant children and in the absence of good and sufficient reasons shown to the court, such as ill usage, grossly immoral principles or habits, want of ability, etc., is entitled to their custody, care and education. People, ex rel. Nickerson, 19 Wend., 16; 16 Schouler, Dom. Rel. (5th ed.), secs. 245-251; Maples v. Maples, 49 Miss. 393; Moore v. Christian, 56 Miss. 408; 31 Am. Rep., 375. The findings of the circuit judge in this case are entitled to the same considerations and weight as the findings of fact of the lower court in any other class of cases. Kuhn v. Breen, 101 Iowa 667, S.C. 70 N.W. 722; Shaw v. Nachtwey, 43 Iowa 653; Drumb v. Keen, 47 Iowa 435; Bonnett, ex rel. Newmeyer, v. Bonnett, 61 Iowa 199, S.C. 47 Am. Rep., 810, S.C. 16 N.W. 91; Franklin v. Carswell, 103 Ga. 553, S.C. 29 S.E. 476; Re...

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