Beavers v. Williams

1. Where no exception pendente lite was filed to a judgment overruling, on July 31, 1943, a demurrer to an answer as amended, an assignment of error on such interlocutory ruling in a bill of exceptions not sued out until November 4, 1944, comes too late and can not be considered.

2. Where a father relinquishes the custody and control of his minor child to another, the latter, if a suitable and proper person to have such custody, is legally entitled thereto.

(a) In such a case the domicile of the person to whom the custody is relinquished becomes the domicile of the child, and a court of ordinary is without jurisdiction to appoint a guardian therefor in the absence of a showing of a change of condition inimical to the welfare of the child. In no event is the court of ordinary of a county other than that of the domicile of the child vested with power to appoint a guardian of such child.

(b) While the judgment of a court of ordinary, a court of general jurisdiction, is valid and conclusive until reversed or set aside, a court of equity of one county, having acquired jurisdiction of the person of one appointed guardian of a minor in another county of this State, may under its equitable power, upon a direct attack upon such judgment on the ground of actual fraud in the procurement thereof, set aside the judgment upon proof of such alleged fraud.

(c) Notwithstanding the fact that in a habeas-corpus proceeding the judge of the court in which he is sitting passes upon all questions of law and fact in a summary way to determine as to the legality of the detention, there is in this State no habeas-corpus court eo nomine, but the judge of a superior or city court, sitting on the trial of a habeas corpus, is presiding in a cause pending in the court of which he is judge, and his decision is a judgment of that court.

(d) The fact that the trial in a habeas-corpus proceeding does not occur in regular term, does not affect the question of the pendency of the cause in the court in which the judge presides, such session of the court in a habeas-corpus proceeding being a term quoad (in so far as) the judgment or decree complained of.

(e) Accordingly, in a habeas-corpus proceeding pending before a judge of the superior court, a respondent to the writ may by his answer seek equitable relief against the petitioner, and thereby convert the proceeding into an equitable cause in the superior court.

(f) Under the law of the case as made in a former hearing of the cause in the superior court of Whitfield County, the answer as amended of the respondent to the writ constituted a valid direct attack, on the ground of actual fraud in its procurement, upon the judgment of the court of ordinary of Murray County appointing the petitioner guardian of the child alleged to be illegally detained.

(g) The evidence was sufficient to authorize the finding of the trial judge that the father of the child had in his death-bed illness permanently relinquished its custody to its grandmother, a respondent to the writ of habeas corpus, whose domicile in Whitfield County thereby became the domicile of the child; and that, in procuring her appointment as guardian of the child in the court of ordinary of Murray County, the petitioner for the writ of habeas corpus perpetrated an actual fraud upon that court in falsely representing the domicile of the child as being in Murray County. Accordingly, the court did not err in setting aside the judgment appointing the petitioner guardian and in remanding the child to the custody of the respondent grandmother, admittedly a proper and suitable person.

No. 15079. FEBRUARY 9, 1945. ADHERED TO ON REHEARING MARCH 7, 1945. Mrs. Hattie Beavers, as guardian of the person and property of Donald Pierce Wilbanks, a four-year-old orphan, brought habeas-corpus proceedings in the superior court of Whitfield County against Mrs. Victoria Williams, J. II. Williams, and Mrs. J. H. Williams for the purpose of obtaining custody of her alleged ward. She alleged that on January 5, 1942, she was duly appointed guardian of the "person and property" of the child by the court of ordinary of Murray County, Georgia, copies of the proceedings being attached to the petition; that her ward was being illegally detained by the defendants in their home in Whitfield County; and that they have refused her demand for possession and custody of her ward, although as guardian she is entitled to such custody. She prayed for issuance of the writ, and that on the hearing she be allowed full and complete custody of the ward. The defendants in their answer admitted that they had refused to deliver the child to the petitioner, and alleged that under the circumstances of the case they were entitled to retain custody. Their answer set up the following facts: Mrs. Victoria Williams is the child's maternal grandmother, and J. H. Williams is a brother of his mother. J. H. Williams and his wife, who have no children of their own, live in the home with Mrs. Victoria Williams in Whitfield County. Mrs. Hattie Beavers, the petitioner and guardian, is a niece of the child's father, Burl Wilbanks, who lived in Murray County. After the death of the child's mother in February, 1940, Mrs. Victoria Williams, at the request of his father, took the child into her home and cared for him. Burl Wilbanks, the father, died in September, 1941. While he was in a hospital and shortly before his death, Wilbanks asked Mrs. Victoria Williams, the grandmother, to keep the child after his death, take good care of him, and rear him properly. J. H. Williams and his wife are willing and able to maintain and support the child and give him a highschool education, without encroaching upon his estate. They do not wish to assert any right inconsistent with the death-bed request of the child's father, and are perfectly willing to have the grandmother retain his custody. They will maintain a home for both the child and his grandmother at such place as the grandmother may desire. The petitioner demurred to the answer on the grounds that it set out no defense, and constituted an attempt to collaterally attack the judgment of the court of ordinary appointing her guardian. The court overruled the demurrer, and upon a hearing denied the prayers of the petition and remanded the child to the custody of the grandmother. The petitioner excepted, assigning error on the judgment overruling the demurrer and the judgment awarding custody of the child to the grandmother. This court, in Beavers v. Williams, 194 Ga. 875 (23 S.E.2d 171), held that the judgment of the court of ordinary of Murray County, a court of general jurisdiction, was not subject to the collateral attack, and that the guardianship appointment, being valid on its face, could not be disregarded in the absence of a direct attack on such judgment, and reversed the judgment of the trial court.

After the return of the remittitur and before the judgment of this court was made the judgment of the trial court, Mrs. Victoria Williams amended her answer and directly attacked the judgment of the court of ordinary of Murray County appointing Mrs. Beavers as guardian, as void for the reason, among others, that she had perpetrated a fraud upon that court by representing the domicile of the child as being in Murray County, whereas it was in Whitfield County. The petitioner's general demurrer was overruled on July 31, 1943, and the case was brought to this court by bill of exceptions in which Mrs. Beavers assigned error only on the judgment of the trial court overruling her general demurrer to the answer as amended. This court dismissed the writ of error as prematurely brought because no final judgment was shown to have been rendered. Beavers v. Williams, 197 Ga. 9 (28 S.E.2d 254).

The case came on for a hearing in the trial court. The petitioner introduced in evidence her verified petition, in which she alleged that the child was domiciled in Murray County, and the exhibits attached to the petition showing her appointment as guardian in the absence of any objections by others. In aid of her allegations of actual fraud perpetrated upon the court of ordinary of Murray County by the petitioner, Mrs. Victoria Williams testified that, after the death of the child's mother in January, 1940, the father, in March, 1940, when the child was nearly two years old, asked her to take him in her home and care for him, and that she did so, treating him with the attention and affection that would be bestowed by a parent; that in return for her services the father regularly furnished money and groceries; that he originally wanted her to come and live with him and the child, but she could not do so; and that finally he placed the child with her under the above-stated arrangements. She testified that, while this was perhaps a temporary provision, the child was eventually permanently released to her care and custody under the following circumstances: The father became ill and died in a hospital in September, 1941. She visited him at the hospital, and in his last illness there and shortly before his death he stated to her: "You take care of my boy, which I know you will do," and he further said: "The child is right where I want him."

Evidence was introduced on behalf of the petitioner to the following effect: The father of the child, before his last illness, had stated to numerous kin and others that the arrangement with Mrs. Williams was only temporary, and that, when his financial situation became better and he completed a house he was then erecting, it was his purpose to bring the child to his own home; that he wanted the child to live with him, as he feared that the situation at the home of Mrs. Victoria Williams, where there resided a son whom he disliked, was not conducive to the welfare of the child; that he intended to have someone live in the house with him and his child or perhaps would remove with the child to Elberton, Georgia, and live with a sister with whom he would conduct a grocery business as had formerly been done, and he would thus support the child and have the benefit of his sister's ministrations towards him. It was admitted by Mrs. Williams that Mrs. Beavers, a month or two after the death of the father, came to her and said that she "thought that they would take the child," and three weeks later said she would give the grandmother time to think it over; but that, though Mrs. Beavers had notified her that she intended to apply for appointment as guardian, she asked her, if in that event Mrs. Williams would want her to send her money or supplies for the support of the child; and that she understood that the appointment would be only as guardian of the property of the child and not of his person. She testified that she did not know of the proceedings for the appointment as guardian of his person until after the appointment had been made; that, while publication of citation may have been made in the county newspaper of Murray County, she was not a subscriber thereto and was ignorant of such notice. Upon being recalled to the stand the defendant made the following answers to questions by the court: "Q. Mrs. Williams, did you ever tell anybody you [were not] able to take care of the boy? A. Well, I wasn't feeling so good when I took him. I didn't feel so good when I first took the child, but I told him I felt it was my duty to take him, glad to take him. Q. Did you tell anybody that you [were] doing that until Burl could make other arrangements? A. No, sir. Of course, I know Burl didn't give him to me when Burl was alive, but he wanted me to live with him. He told me time after time he wanted me to live with them."

Mrs. Beavers admitted that she stated to the ordinary that the child was domiciled in Murray County, and that she knew that at that time the child was residing with his grandmother in Whitfield County, but that she was honest and sincere in making the statement to the ordinary, believing that, as the domicile of the father was in Murray County at the time of his death in September, 1941, the domicile of the child was the same.

It was stipulated between the parties that both were proper and suitable persons to have the custody of the child.

The court found by a judgment, rendered on October 20, 1944, that the father had permanently released the custody of the child to the grandmother, Mrs. Victoria Williams, and that, consequently, his domicile, at the time of the appointment of Mrs. Beavers as guardian, was in Whitfield County and not in Murray County. The judgment of the court of ordinary of Murray County was thereupon set aside, and it was further ordered that "the writ of habeas corpus be and the same is hereby denied, and that Mrs. Victoria Williams, the defendant herein, have the custody and control of said child;" expressly reserving to the petitioner and other near relatives the right to visit the child in the home of Mrs. Williams as provided in the order.

The petitioner excepted, and in the bill of exceptions, signed on November 4, 1944, error is assigned on the judgment of July 31, 1943, overruling her demurrers to the answer as amended; and on the order of October 20, 1944, setting aside the judgment of the court of ordinary of Murray County and denying the prayers of the petition for habeas corpus and awarding the custody of the child to the defendant, Mrs. Victoria Williams. 1. On the former appearance of this case before this court, in which the plaintiff in error complained of the judgment of the trial court overruling, on July 31, 1943, the demurrers to the respondent's answer as amended, the writ of error was dismissed as prematurely brought, it not appearing that any final judgment had been rendered, and no permission was given to treat the official copy of the bill of exceptions as exceptions pendente lite. Beavers v. Williams, 197 Ga. 9 (supra). The present bill of exceptions recites that, as shown by the record, the case did not terminate until October 20, 1944, and the bill of exceptions was tendered and signed by the judge on November 4, 1944, more than fifteen months after the ruling complained of. There being no exception pendente lite, the direct assignment of error on the interlocutory ruling, being made only in a bill of exceptions sued out more than thirty days after the adjournment of the term at which such ruling was made, comes too late and can not be considered. Heery v. Burkhalter, 113 Ga. 1043 (39 S.E. 406); Norman v. Great Western Tailoring Co., 121 Ga. 813 (49 S.E. 782); Brandon v. Akers, 134 Ga. 78 (4) (67 S.E. 540); Birmingham Finance Co. v. Chisholm, 162 Ga. 501 (134 S.E. 301); Callan Court Co. v. Citizens c. National Bank,]184 Ga. 87 (190 S.E. 831).

2. The petitioner, appointed by the court of ordinary of Murray County as guardian of the minor here involved, filed in the superior court of Whitfield County a petition for habeas corpus, seeking custody of the child who she alleged was illegally detained by the respondents. She asserts her right to such custody only by virtue of her appointment as guardian. The respondents filed a return to the writ and set up a gift of the child by its father to Mrs. Victoria Williams, its maternal grandmother and one of the respondents. By an amendment, addressed to the superior court of Whitfield County, Mrs. Williams filed what she contends was a direct attack upon the judgment of the court of ordinary of Murray County, seeking to set aside that judgment on the ground, among others, that Mrs. Beavers, the appointed guardian, perpetrated a fraud upon the court by falsely representing the domicile of the child to be in Murray County, whereas in fact and in law it was in Whitfield County, the domicile of the grandmother, to whom the custody of the child had been permanently given by the father. The court ruled that the answer as amended was sufficient in law to constitute a direct attack upon such judgment, and overruled general and special demurrers filed by the petitioner; thus establishing as the law of the case that, if such allegations be proved, the appointment of Mrs. Beavers as guardian was invalid and should be set aside. After hearing evidence, the court entered judgment finding that the custody of the child had been permanently released to its grandmother, Mrs. Williams, set aside the judgment of the court of ordinary, and remanded the custody of the child to Mrs. Williams. We have for consideration here only the assignment of error upon such judgment of the superior court of Whitfield County.

If the petitioner, Mrs. Beavers, was legally appointed guardian of the person of the child, she would be entitled to its custody. "The power of the guardian over the person of his ward shall be the same as that of the father over his child, the guardian standing in his place." Code, § 49-201. If, however, the child had been given to the grandmother by its father before the appointment of Mrs. Beavers as guardian, it acquired the legal domicile of the grandmother, which was in Whitfield County, and in such a case the court of ordinary of Murray County was without jurisdiction to appoint a guardian for the child, such power being vested only in the court of ordinary of Whitfield County, § 49-105. But the judgment of the court of ordinary of Murray County, a court of competent and general jurisdiction, is conclusive and binding until reversed or set aside by a direct attack thereon, and the law of the case here is that such an attack has been made. While under the law of the case it remains only necessary to determine whether or not sufficient facts have been presented to authorize the setting aside of the judgment of the court of ordinary, we think that it may be of interest to make the following observations as to the law touching the question of setting aside in a court of equity the judgment of a court of ordinary. In numerous decisions of this court, it has been ruled that a court of equity has the power to set aside such a judgment which has been obtained by actual fraud. See, among others, Abercrombie v. Hair, 185 Ga. 728, 732 (196 S.E. 447); Bowers v.Dolen, 187 Ga. 653 (1 S.E.2d 734); Rivers v. Alsup,188 Ga. 75, 77 (2) (2 S.E.2d 632). In those cases the equity court and the court of ordinary were in the same county, but inLester v. Reynolds, 144 Ga. 143 (2, 2a) (86 S.E. 321),Jordan v. Harber, 172 Ga. 139 (157 S.E. 652), andJohnson v. Peoples Bank, 173 Ga. 250 (160 S.E. 235), it was held that, where the superior court of one county has jurisdiction of the person who has obtained by actual fraud a judgment in another county, it may in its equitable jurisdiction set aside such invalid judgment.

The validity of the judgment of the court of ordinary must be measured by the answer to the question as to the domicile of the child, a question raised by the answer as amended of the respondent grandmother, which converted the original proceeding into an equitable cause inter prates. Jenkins v. Flournoy,157 Ga. 618 (122 S.E. 309). The grandmother might have gone into the court of ordinary of Murray County to set aside the judgment therein rendered, and have filed in the superior court of Whitfield County a petition to enjoin the habeas-corpus, proceeding, pending the outcome of the action in Murray County, but she was not obliged to do so, since a court with equitable powers has concurrent jurisdiction with a court of ordinary (Code, § 37-701); and it is well settled that, as between the two, the first taking jurisdiction will retain it (Code, § 37-122), and will give full and complete justice to the parties (Code, § 37-901; Powell v. McKinney, 151 Ga. 803, 811 (4), 108 S.E. 23; Roach v. Terry, 164 Ga. 421 (1 b), 138 S.E. 902; Kidd v. Finch, 188 Ga. 492,4 S.E.2d 187), and thus avoid a multiplicity of suits. Even in a case where the defendant may not have had a right in the first instance to resort to a court of equity for relief, yet where the plaintiff goes into a court having equitable powers and brings the defendant into that court, the defendant may set up in an answer by way of cross-action any defense, legal or equitable, and may obtain affirmative relief. Reaves v. Meredith,120 Ga. 727 (2) (48 S.E. 199).

In the reports of decisions of this court, there may be found many statements that a judge hearing the return to a writ of habeas corpus is sitting as a habeas-corpus court, and one may be led to ask: If the judge is so sitting in a court which has no terms, how can an amendment, addressed to the superior court, be allowed in a habeas-corpus proceeding and thus draw the proceeding from a special court into the superior court, which may not even be in session? In Barranger v. Baum, 103 Ga. 465 (30 S.E. 524, 68 Am. St. R. 113), it was insisted on behalf of the defendant in error that, when the judge of a city court was hearing the return to a writ of habeas corpus, he was not sitting as a judge of the city court but of a habeas-corpus court; and that, therefore, a writ of error would not lie from his decision, but that the only channel through which it could pass for review by this court would be first by certiorari to the superior court. This court held that, "A writ of error will he direct to this court from the decision of the judge of the city court of Richmond County in a habeas-corpus case." In the opinion it was said that the fact that all the machinery of the court in which the judge was sitting in a habeas-corpus proceeding is not called into requisition at a regular term for the purpose of such hearing, is not inconsistent with the idea that such a proceeding is one in the city court, and it was further said: "The law recognizes no such courts eo nomine as habeas-corpus courts. It is true, in the case of Moore v. Roberson, 63 Ga. 506-8, Justice Bleckley alluded to the ordinary on trying such cases as holding a special habeas-corpus court. The reason assigned for this was, that jurisdiction in such matters was not conferred by statute upon the court of ordinary, but upon the ordinary; and hence the constitution of 1877, by restricting the jurisdiction of courts of ordinary in some respects to county matters, did not affect the statutory power of the ordinary, previously granted, to preside on the return of writs of habeas corpus. In Southern Express Co. v.Lynch, 65 Ga. 245, Justice Jackson states that, when the judge of the superior court is trying a case upon a writ of habeas corpus, he site as a habeas-corpus court and not as the superior court. This was merely obiter, and not necessary to the decision rendered in that case, which was simply that the proper remedy for one who was illegally imprisoned with or without form of law is by habeas corpus. But we do not consider this dictum of the court necessarily in conflict with the view herein entertained. We think, however, a more accurate legal view to take of the matter is, that, when a judge of a superior or city court is sitting on the trial of a habeas corpus, he is presiding in a cause pending in the court of which he is judge, and his judgment is a decision of that court, the court recognized by the constitution and established by the laws of the State. The fact that the trial does no occur in regular term does not affect the question. In the case of Moore v. Ferrell, 1 Ga. 6, a motion was made to dismiss the writ of error, on the ground that the order of the judge below was made at chambers, and that the Supreme Court possessed no jurisdiction over the decisions of the judges of the superior courts made in vacation. Judge Lumpkin, who delivered the opinion in that case, said ``that the session of the court below, although intermediate the regular terms, was nevertheless a term quoad [in so far as] the judgment or decree complained of.'" In Hendley v. Adams, 129 Ga. 518 (59 S.E. 227), a writ of habeas corpus was sued out before the ordinary and his decision was carried to the superior court by certiorari. It was held by this court that a writ of error was properly returnable to the Supreme Court, and that the jurisdiction to pass on such a case was in this court and not in the Court of Appeals. Under the amendment to the constitution ratified in 1906, declaring that "The Supreme Court shall have no original jurisdiction, but shall be a court alone for the trial and correction of errors in law and equity from the superior courts in all civil cases, whether legal or equitable, originating therein, or carried thereto from the court of ordinary," etc., it was necessary to determine that the case certioraried to the superior court was a civil case from the court of ordinary within the meaning of the constitution. This court so held, and in the opinion, in referring to the numerous references to "habeas-corpus courts" in former decisions, it was said: "Without discussing the cases in which language of this character has been used, or the correctness of the decisions made in them, in view of the questions actually involved, it may be suggested that the law of this State has created no court known as ``a habeas-corpus court.' It has conferred upon the judges of certain courts power to issue the writ and hear the case, but it has erected no distinct tribunal or set of tribunals for that purpose. If the ordinary, who is the judge of the court of ordinary, when hearing a habeas-corpus case, is not to be treated as acting as the ordinary, it would seem that the same rule would apply to a judge of the superior court under like circumstances. If the judgment of the latter in a proceeding of this character is not the judgment of a judge of the superior court, but of some special kind of tribunal, how is his judgment to be reviewed by this court at all?" The opinion then refers to the case of Moore v. Ferrell, supra, and also to Barranger v. Baum, supra, saying that the point was practically determined in the last named case, and that, "In order to hold that a writ of error would lie from a decision of the judge of a city court to this court in a habeas-corpus case, it was necessary to hold that the decision of the presiding judge in such a case was the action of the city court within the meaning of that provision of the constitution [stating the jurisdiction of this court]."

It thus appears that, whether or not the hearing be at aregular term, it is, in so far as such proceeding is concerned, a hearing in term. In the present case it is recited in the bill of exceptions that the case came on to be heard "in the superior court of said county," and "the same being at the regular July term, 1944, of said court." In a habeas-corpus proceeding the judge passes upon all questions of law and fact without a jury, in a summary way, to fix the status of the person detained, and the beneficent purposes of the writ ought not to be dissipated by subtle objections and technical niceties or lessened by legal refinements. Simmons v. Georgia Iron Coal Co., 117 Ga. 305,312 (43 S.E. 780, 61 L.R.A. 739). See also Code, §§ 50-114, 50-121, 50-119; Starr v. Barton, 34 Ga. 99;Sumner v. Sumner, 117 Ga. 229 (4) (43 S.E. 485); Harwell v. Gay, 186 Ga. 80, 84 (1) (196 S.E. 758). There is here no complaint that, though equitable characteristics were given to the proceeding, the hearing was not held at a proper time, or that the judge should not have formulated his judgment without a jury passing on the facts, all objections going to other matters. Since no contention is made that the hearing was in any wise premature, and the petitioner entered upon the trial of the issues without any objection, her consent to a trial at the time it was had must be implied. It follows that, even if the court should have deferred action until a second term by reason of the proceeding having been converted into an equitable cause, a theory which we do not admit to be tenable in view of the nature of a habeas-corpus investigation, any complaint that the hearing was premature would be without merit. Wilson v. Trustee of Unionc. Seminary, 181 Ga. 755, 756 (1) (184 S.E. 290). Furthermore, even if it could be said that, by reason of the equitable feature injected into the case, the rule as to a summary hearing by the judge alone must yield to the principle that in equity cases the jury should pass on the facts touching the question of setting aside the judgment of the court of ordinary, the judge properly passed on the facts without the aid of a jury, for the reason that, as hereinafter shown, there was no conflict in the evidence on the question of fraud in the procurement of the judgment sought to be set aside.

Was there evidence sufficient to establish the right of the grandmother, Mrs. Victoria Williams, to the custody of the child? The domicile of the child in the lifetime of its father was that of the father in Murray County, Georgia, unless he had voluntarily relinquished his parental authority to some other person, in which event the domicile of the minor became that of the one to whom parental authority had been relinquished. Code, § 79-404. "Where a father relinquishes the custody and control of his minor child to another, the latter, if a suitable and proper person to have such custody and control, is legally entitled thereto." Carter v. Brett, 116 Ga. 114 (42 S.E. 348);Saxon v. Brantley, 174 Ga. 641 (163 S.E. 504); Bailey v.Warlick, 196 Ga. 642, 647 (2) (27 S.E.2d 322). Such a relinquishment is irrevocable except for good cause shown.Bently v. Terry, 59 Ga. 555 (3) (27 Am. R. 399); Lamar v.Harris, 117 Ga. 993, 999 (44 S.E. 866); Durden v.Johnson, 194 Ga. 689 (2) (22 S.E.2d 514). The evidence to show a relinquishment must be clear and certain. Miller v.Wallace, 76 Ga. 479 (2 Am. St. R. 48); Broxton v.Fairfax, 149 Ga. 122 (2) (99 S.E. 292); Butler v. Ross, 188 Ga. 329, 330 (4 S.E.2d 21); Morris v. Grant, 196 Ga. 692, 693 (27 S.E.2d 295). In the present case it is stipulated between the parties that both the petitioner, Mrs. Beavers, and the respondent, Mrs. Victoria Williams, are fit and suitable persons to have the custody of the child. We think that, under the above authorities, the court was authorized to find that the custody of the child had by contract been relinquished by the father to its grandmother, Mrs. Williams, and that she fully complied with her agreement to take care of the child and properly rear it. Although there was evidence to the effect that before his last illness the father had declared to others that the arrangement for the keeping of the child by the grandmother was only temporary and he intended to bring it to his own home when he completed a house he was then erecting, or might remove with the child to Elberton, Georgia, and live with a sister and conduct with her a grocery business and thus support the child and have the benefit of the ministrations of the sister towards the child, none of these statements were shown to have been made in the presence of Mrs. Williams; and the uncontradicted evidence was that the father, in his last illness in a hospital, told Mrs. Williams, after she had had the child for about eighteen months, "You take care of my boy, which I know you will do," and further said, "The child is right where I want him." Certainly, no matter what his intentions might have been theretofore, these death-bed utterances were sufficient to show clearly and definitely a complete relinquishment of custody to the grandmother with the understanding that she would care for and rear him. In Portman v. Mobley, 158 Ga. 269, 271 (123 S.E. 695), similar language was held by this court to authorize a finding that the father of a minor had placed the child in the custody of a brother domiciled in a county other than that in which the grandfather on the maternal side had obtained an order of adoption of the child. In that case there was testimony by an uncle of the child, and by others to the same effect, that, while the child was living with the paternal grandfather in Troup County, "My brother told me before he died that he wanted his father, W. R. Mobley [the paternal grandfather of the child], to take and rear Lois."

In response to a question by the judge as to whether she ever told anybody that she was taking care of the child only until the father could make other arrangements, Mrs. Williams answered "No, sir. Of course, I know Burl didn't give him to me when he wasalive, but he wanted me to live with him. He told me time after time he wanted me to live with them." (Italics ours.) It is strongly urged by counsel for the plaintiff in error that the above italicized words show conclusively that Mrs. Williams's custody was only temporary. Evidently the court did not so construe the language, and the meaning contended for is not required. Words are only vehicles of thought and are sometimes in their context inexact, and those here employed must be interpreted in the light of all the facts and circumstances of the case. Mrs. Williams had testified that the original idea of the father was that she come and live with him and take care of the child in the home of the father, but that she, for satisfactory reasons, was unwilling to enter into that arrangement, and that subsequently and before his last illness the father placed the child in her own home. She did not contend that the first placement was of a permanent nature, but she did contend that in his death-bed illness the father permanently relinquished the custody of the child to her. In her first statement to the court as above quoted, she affirmatively denied that when she originally took the child she told anybody that she was doing it only until the father could make other arrangements, but she then admitted that she knew he "didn't give him to me when Burl [the father] was alive" but wanted her to live with him. The loose expression, "when Burl was alive," could not, when all of her testimony is considered, be distorted to mean that the father never in his lifetime gave the child to her, but refers rather to the period antedating his deathbed declaration, as it is followed by the words, "but he wanted me to live with him," a wish expressed before his last illness and not at the hospital, when, abandoning any original plan of having the child and Mrs. Williams in a home with him, he made a permanent arrangement with Mrs. Williams for retaining the child in her home where the child already was, stating to her, "You take care of my boy, which I know you will do," and, "The child is right where I want him." Certainly in view of all the facts and circumstances, where no contention was made by Mrs. Williams that she acquired custody of the child only after the death of the father, the expression, "when Burl was alive," was reasonably susceptible of the construction evidently placed thereon by the judge, that it related to the period antedating the father's death-bed illness, the grandmother distinguishing between the time when he was not incapacitated and when he was on his death bed.

Since the court was authorized to find in favor of Mrs. Williams's contentions, it necessarily follows that she stood in loco parentis to the child, and that his domicile was that of the grandmother, and no court would be authorized to appoint a guardian for the child in the absence of a showing of a change in condition rendering Mrs. Williams's custody of the child inimical to its welfare. In no case, while the child was domiciled in Whitfield County, could a court of ordinary of another county legally appoint a guardian for it. Code, § 49-105. Yet, while the judgment of the court of ordinary of Murray County might be set aside in that court merely by showing a lack of jurisdiction, to set it aside in a court of equity in another county, it is necessary, under the authorities hereinbefore cited, that actual fraud be shown in the procurement of the judgment. The question, therefore, arises: Was the trial judge, acting in an equity court in Whitfield County, authorized to find the guardian, Mrs. Beavers, applicant for the writ of habeas corpus, guilty of perpetrating an actual fraud upon the court of ordinary in Murray County? She admitted that she represented in the guardianship proceeding that the child was domiciled in Murray County, and that she knew that the child was at that time residing with its grandmother in Whitfield County. She seeks to justify her declaration by stating that she thought the child was domiciled in Murray County because she knew its father had lived and died therein. This was not an instance of representing something, qualified by a statement that the declaration as to domicile was made on information and belief, but the representation amounted to a pretension of knowledge of a fact which, upon application of the law, was untrue, but which she, without disclosing other information to the court, intended to be relied upon as true in the consideration of her application for appointment as guardian. Whether or not she overtly intended to deceive the court, the effect of the unqualified statement was to cause the court to act upon a misapprehension of its jurisdiction just as readily as if the statement had been made while conscious of its falsity. One not knowing should not, in a solemn proceeding, pretend to know, and if he does so act he thereby commits upon the court an actual fraud which is remediable in equity. In the course of a carefully prepared opinion in an early case, Smith v.Mitchell, 6 Ga. 458, Judge Nisbet, speaking for the court, said, "If the fact is neither known to be true or false, the affirmation of its truth is, in morals a falsehood, and in law a fraud. The turpitude in the latter case, by a nice balancing in the moral scales, may be considered as being a fraction less intense, and that is all the difference. The consequence to the injured party is the same in both cases, and the consequences to the healthfulness of contracts throughout the entire business world, if such delinquency was tolerated, would be, also, in both cases the same. In both cases there is an actual fraud, a moral fraud necessarily deducible from the affirmation of a fact which is false, and upon which another is induced to act to his injury. In all such cases the intervention of a court of chancery may be put upon the ground of fraud." The provisions of our Code are in accordance with this ruling. Section 37-702 provides: "Fraud may be actual or constructive. Actual fraud consists in any kind of artifice by which another is deceived." Section 96-202, which was doubtless patterned after the statement in Smith v. Mitchell, supra, provides: "Fraud may exist from misrepresentations by either party, made with design to deceive, or which does actually deceive the other party." It is clear that the gravamen of the offense is the deceit which is practiced. The Code, § 105-302, extends the scope of the guilt to reckless representations, since it is there provided that, "A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood." One of the definitions of "deceive" by Webster is: "To lead into error; to cause to believe what is false or disbelieve what is true; to impose upon." It can not be denied that Mrs. Beavers intended that the court of ordinary rely upon her statement of a fact which was false. In doing so, she misled and caused the court to do what it would not have done if it had known that the domicile of the child was not in Murray County. She seeks to justify her conduct upon an erroneous conclusion of law as to the domicile, and, while her belief might have been quite sincere, her conduct was nevertheless such recklessness as the law terms the equivalent of knowingly making a false statement. A fair and proper statement to the court would have been that she really did not know the domicile, though she apprehended that upon legal principles it was in Murray County, in which event the court would have paused and have made further investigation. Such an investigation would have doubtless disclosed the claim of the grandmother, who was unaware of the proceeding, and not barred from subsequently attacking the proceeding merely because citation by publication in Murray County, not brought to her notice in Whitfield County, had been made. Davis v. Albritton, 127 Ga. 517, 520 (56 S.E. 514, 8 L.R.A. (N.S.) 820, 119 Am. St. R. 352); Bowers v.Dolen, 187 Ga. 653 (3) (supra).

It follows from the above that the court did not err in finding that the custody of the child had been permanently relinquished to the grandmother, Mrs. Victoria Williams, and in setting aside the judgment of the court of ordinary of Murray County, and in remanding the custody of the child to Mrs. Williams.

Judgment affirmed. All the Justices concur, except Wyatt, J.,absent because of illness.