Kidd v. Brown , 136 Ga. 85 ( 1911 )

Lumpkin, J.

(After stating the foregoing facts.) The writ of habeas corpus may be used as a means of freeing one from illegal custody. It can not be used as a means of obtaining custody of a minor’s person, so as to compel him to work and pay the’ preexisting debt of his parent, although such parent may have agreed that the minor should thus pay his debt. When the writ is used as a means of determining who is .entitled to the custody of a minor, the welfare of the minor is an important factor to be considered. The child can not be dealt with like merchandise or a mere animal. The relinquishment of parental control by agreement which the law recognizes does not mean the delivery of the minor’s body, like a chattel, to another for the purpose of being compelled to pay, by his labor, the father’s debt.

The contract in the ease at bar was not for the care, maintenance, or support of this boy, fourteen years of age. It was to deliver him up to labor in order to pay a pre-existing debt admitted to be due by his parents. If the creditor saw proper to furnish the boy any “every-day wearing apparel and other necessaries,” the wages of the latter were to be held until such amounts were paid, as well as the original debt; “and in order that this contract may be carried out according to all intents and purposes, the said Henry Brown and Wennie Brown [the father and mother] agree for said Kidd [the creditor] to have as full control of their said son as they have as parents, and to hire him to whomsoever he wishes and at whatever price he wishes, provided it be not less than five dollars per month.”

In Eaves v. Fears, 131 Ga. 822 (64 S. E. 270), it was said: “It would be an inhuman, and, indeed, a monstrous act, for a father to dispose of his child as he would a piece of property, solely to relieve himself of his child’s care and support, or for any pecuniary considerations. The law, in providing that he could lose his parental power by a voluntary contract, never contemplated that the father would dispose of his child solely for the purposes above stated, nor would it look with favor on any such contract. The State is vitally interested in the existence and the proper moral, intellectual, and physical training of its children who are to become its men and women;” and “as above stated, it did not contemplate a contract with all the incidents of a bargain and sale.”

Specific performance of a contract for purely personal services .will not be decreed by a court of equity. Willingham v. Hooven, Owens, Rentschler & Company, 74 Ga. 233 (58 Am. R. 435). Nor can thé writ of habeas corpus be used im lieu of a decree of specific performance.

The parents of the child refused to yield his custody to the creditor. They set up fraud in the procurement of the contract, as well as its illegality. The boy did not desire to go with the creditor. The writ was sued out to secure his custody, in order to enforce the payment of the 'debt. It would seem that such a contract, if freely made, was contrary to public policy, as to the part of it affecting the release of parental control for the purpose named. And in any event, if the contract were to be held valid as to the hiring, a suit for damages for its breach, not a writ of habeas corpus, would be the remedy.

The presiding judge properly reversed the judgment of the ordinary and awarded the custody of the boy to his parents.

Judgment affirmed.

Fish, C. J., absent, The other Justices concur.