Janes v. Cleghorn , 63 Ga. 335 ( 1879 )

Bleckley, Justice.

1. There were two separate and distinct issues: one as to the alleged right of the caveator, appealing to strict law; the other as to the best interest of the child, appealing to discretion. Both were on trial at the same time. To the' former the caveator was related as a party at interest in a personal and selfish capacity, litigating on his own behalf and for his own benefit; to the latter he was related just as his adversary was related to it, that is as a mere friend to the child, willing to serve it as guardian and to promote its welfare, without money and without price, there being to guardianship of the person no compensation attached. In maintenance of the former issue he was undoubtedly incompetent to prove a contract with the deceased father by which the father relinquished to him the parental right. Such a contract would give him a property in the custody and services of the child during its minority, and for that reason he could not be heard as a witness to establish it in his own favor, the other party to it being dead. Code, §3854. But we see no reason why he could not testify to it in favor of the child as a part of the child’s history, not for enforcement as a binding contract, but for adjusting fitly and appropriately the child’s future to its past. In case his alleged right should not be made out by other evidence, then the child’s interest would be the sole end for the jury to advance, and in looking to that, the entire history of its custody and nurture, so far, would be material. If that history embi'aeed an agreement on the part of the father with the caveator that the latter might keep the child until it arrived at majority, and if the jury should demn him in all respects fit and proper to become the guardian, the father’s preference, as manifested by the agreement, together with -what was done in consequence of the agreement, might very reasonably influence the opinion of the jury in deciding whether, for the true interest of the child, the caveator ought to be appointed rather than the applicant. The footing on which a contestant for the guardianship stood with the father and mother of the child, or with either, while they were in life, is a consideration of some importance, and any declaration or act, whether in the shape of a contract or of something else, which throws light on the same is relevant. According to all the evidence, there is no doubt that the father, in his life-time, placed the child in the family of the caveator, and that it was still there at the time - of his death. Whether, in the father’s contemplation, that was a permanent or only a temporary arrangement for the child, would naturally influence, in some degree, almost any mind in deciding on the child’s interest in respect to measures for a change. We think the testimony of the caveator was admissible, for what it was worth, as a guide in the exercise of discretion, and that, instead of rejecting it, the court ought to have adinitted it, with instructions to the jury to confine its effect to that one purpose.

2. We agree with the court below in thinking that the judgment in the habeas corpus case does not conclude the applicant from disputing the alleged contract between the deceased father and the caveator. That judgment could well have been rendered irrespective of any such contract. The applicant had a permissive custody of the child, derived from the caveator, as it was insisted, on a promise to return it, and the habeas corpus was sued out by the caveator after the time for returning it had elapsed. The judgment was put in part, and might, under the facts, have been put altogether, on the ground that the applicant was estopped by his promise to return the child, that promise having been the condition on which the caveator parted with the custody temporarily at the applicant’s request. The applicant held, so to speak, under the caveator, and whilst so holding could not dispute the latter’s title. 54 Ga., 9. Another reason, perhaps, why a judgment rendered between two contestants for the possession of a child, on a writ of habeas corpus, should not stand in the way of future proceedings looking to supplying the child with regular guardianship, is, that in the latter the child’s need of a guardian and its right to have a guardian are the great and controlling elements, whilst in the former these elements are' not necessarily involved. In the tableau of habeas corpus, the parties are in the foreground and the child in the background ; but in the tableau of guardianship, the arrangement is reversed — the child is the principal figure, and applicants and caveators are secondary and subordinate.

Judgment reversed.