WALKER, O. J.
Petitioner was adjudged guilty of contempt by the Circuit Court of Bates County for refusing to obey an order of that court, and was sentenced to imprisonment in the county jail. He seeks release therefrom on the ground that the court was without jurisdiction.
In March, 1919, the wife of the petitioner filed a bill in equity against him in the Circuit Court of Bates County for maintenance and the custody of their three minor children. A decree was rendered in her favor. Upon an appeal to the Kansas City Court of Appeals the judgment of the trial court was affirmed and the custody of the children awarded to the mother. [224 S. W. 41.] Petitioner thereupon applied to the Supreme Court for a writ of
certiorari
to be directed to the Court of Appeals, on the ground that its opinion was in conflict with certain decisions of the Supreme Court. The application for the writ was denied.
Petitioner then applied to the Supreme Court for a writ of prohibition to prevent the trial court from taking further cognizance of the suit in which it had rendered judgment against him, and especially from proceeding against him for contempt for his failure to surrender the custody of the children to their mother. The application for this writ was denied.
Upon the failure and refusal of the petitioner to comply with the judgment of the trial court he was adjudged guilty of contempt and ordered into the custody of the Sheriff of Bates County to be imprisoned in the county jail until the further order of the court, or until otherwise discharged by due process of law. Petitioner thereupon applied to the Supreme Court for a writ of
habeas corpus
alleging as sole ground therefor, as in the applications for
certiorari
and prohibition, a lack of
jurisdiction of the trial court in equity to entertain a proceeding to determine and award the custody of minor children.
It is not necessary to set forth in detail the facts adduced in evidence upon which the trial court bas.ed its finding in rendering judgment herein and in thereafter ordering the petitioner’s imprisonment for his failure to comply therewith. These facts, if not expressly conceded, are not attempted to he denied and are made a part of the sheriff’s return. We also find them correctly set forth with all n.ecessary fullness in the learned opinion of the Court of Appeals by ElusoN, J. Their recital here would consequently only serve to emphasize the moral turpitude of the petitioner and add, if possible, to the radiant lustre of hi's wife’s life as manifested by her fidelity to duty.
Only so far, therefore, as it may be deemed necessary to clearly define the character and render evident the attitude of the petitioner will the facts as found by the trial court be stated.
The petitioner, his wife, and three small children, lived in Colorado. The youngest child became seriously ill and so continued for many months. The mother attempted during all of this time to give the child such attention as its condition required, and at the same time to care for the other children and perform all the duties of a housewife. As a result her health broke down and she suffered from nervous prostration. After months of treatment she was taken by petitioner to her father’s home, the children then being cared for by his mother. During the latter part of the wife’s illness a nurse was employed to care for the wife. The petitioner became infatuated with this woman, afterwards shown to be without character. Upon the wife’s recovery and her repeated importunities that the petitioner provide a home for her and the children, he refused to do so, ineffectually sought to obtain a divorce or to induce the wife to obtain one, and continued his clandestine relations with the woman, who, in the meantime, had gone
to Rich Hill, Missouri. Upon the refusal of the petitioner to establish a home for his wife and children and his cruelly informing the wife that he did not intend to live with her, she brought a suit in Colorado for maintenance and the custody of the children. Upon being' served with summons in that proceeding he took the children, then at his mother’s, and came with them to Rich Hill, where he proceeded to establish a home and to install therein as mistress the woman with whom he had become infatuated, placing his' children in her charge. This woman’s immorality was a matter of record of which the petitioner had knowledge. This condition of affairs existed at the time the wife brought the action in Bates County and continued after the custody of the children had been awarded to her, when the petitioner spirited them away in violation of the court’s decree, and hence the adjudication in contempt from which petitioner seeks release.
The right of the petitioner to the writ herein is dependent upon the jurisdiction in equity of the trial court. This jurisdiction is the question primarily to be determined. Other inquiries determinative of that jurisdiction may properly be considered.
Wife's Right to Sue Husband.
I. At the common law the identity of the husband and wife as one person precluded either from suing the other; but in equity, where the wife’s claims were adverse to hér husband’s, she might sue him by next friend and he might sue her. Ear-¡y in history of our jurisprudence courts of equity recognized the separate existence of the wife and secured to her her separate estate and equitable rights. [Tennison v. Tennison, 46 Mo. 77.] Her rights as thus limited were generally recognized here and in other states of the Union before the enactment of the :Married Women’s Act. The dominating changes effected by this character of legislation are too familar to .require extended recital. While the statutes of the . several states on this subject are similar in the main,
they -are different in minor particulars not necessary to be set. forth here. Generally this purpose, as evidenced by their terms, is to render the husband and wife independent of each other as to their property and litigable rights; thus rendering the, wife capable of contracting in law as well as in equity, as if she were a
femme sole.
The Missouri statute (now Sec. 8304, E. E. 1909), omitting the proviso, not pertinent, is as follows: “A married woman shall be deemed a
femme sole
so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued, and to enforce and have enforced against her property such judgments as may be rendered for or against her, and may sue and be sued at law or in equity, with or without her husband being joined as a party.”
An illuminating opinion by Gantt, J., in Rice, Stix
&
Co. v. Sally, 176 Mo. 107, after construing this statute, concludes that “a proper construction of same leads to the complete emancipation of the wife from her matrimonial bonds so far as her property rights are concerned in law as well as in equity, that she may contract with her husband and sue and be sued by him at law.” This conclusion was reached in determining that the wife might maintain an action at law against her husband.
In Grimes v. Reynolds, 184 Mo. 679, 694, the right of a wife to litigate concerning her separate estate, to become a creditor or a debtor of her husband, and the authority of either to enforce their rights in equity against the" other, was definitely declared. Our latest ruling on this subject, which follows the trend of former decisions, is found in Regal Realty etc. Co. v. Gallagher, 188 S. W. 151, in which it is broadly stated that the statute in clothing the wife with powers of a
femme sole
and authorizing her to transact business and contract and be contracted with, applies as well to her relations with her husband as with others (citing numerous cases).
From all of which it follows that a wife may, as a
femme
sole, sue her husband as she may others in law
as well as in equity, except that slie cannot maintain an action for a personal tort against Mm. [Rogers v. Rogers, 265 Mo. 200].
Jurisdiction as to Personal Rights.
II. Before discussing the immediate question of jurisdiction here demanding determination, we may not inappropriately consider the more general inquiry as to the power of a court of , . . . ,. .. . equity to exercise jurisdiction m the protection of personal rights or the extent to which the maxim
aequitas agit in personam
is applicable.
It is true that the findings of the trial court not only considered and disposed of the personal status hut the property rights as well of the children. TMs might he regarded as foreclosing the necessity of a consideration of the general inquiry; hut that no phase of the court’s equity powers may not he subjected to review, we consider it. If not expressly stated, the intimation appears in numerous cases that a complainant’s person is heyond the scope of the powers of a court of equity. However, this conclusion must not be taken literally. “If so,” as was forcefully said by a modem commentator (Burdett A. Rich), “it would make the system of equity suitable only to a semi-savage society which has much respect' for property but little for human life. . Our equity jurisprudence does not deserve so severe a reproach.” "While it has done much for the protection of personal rights, it has been reluctant to admit it. The existence of this power rendered evident by its frequent exercise, cannot be affected by the reluctance of the courts in admitting it. Instances illustrating the exercise of equity jurisdiction for the protection of personal rights may by the curious be found in an exhaustive note appended to Chappell v. Stewart, 37 L. R. A. 783, and in 8 Sol. Jour. 158, 179, where the cases ruling affirmatively upon the court’s power in this respect are carefully collated. These cases, supplemented by numerous others herein cited,
we will consider in tlie discussion of the immediate question at issue. They will he found to authorize the conclusion that courts of equity, clothed as they are with this general pow.er, may include in its exercise the determination of the personal rights of infants. If this conclusion he correct, jurisdiction in the instant case may properly he predicated thereon.
But if resort be had to the illogical refuge that the exercise of the court’s power as applied to the •ease at bar, is not included within and made a part of its general power, then the propriety of that exercise may he sustained on the ground that the protection of infants, even from their parents, is one of the exceptions to the limitation under discussion and constitutes one of the well established grounds for the exercise of equity jurisdiction in the protection of personal rights. [Shelley v. Westbrooke, Jac. Eng. Ch. R. 266; Warde v. Warde, 2 Phill. Ch. 786; Creuze v. Hunter, 2 Cox, Ch. Cases, 242; Thomas v. Roberts, 3 DeG. & S. 758; State v. Grisby, 38 Ark. 406; Cowls v. Cowls, 3 Gilm. 435; State v. Stigall, 22 N. J. L. 286; Wilcox v. Wilcox, 4 N. Y. 575; Ward v. Roper, 7 Humph. 111; State v. Baird, 21 N. J. Eq. 384; Striplin v. Ware, 36 Ala. 87; In re Flynn, 2 DeG. & S. 457: Eyre v. Countess of Shaftesbury, 2 P. Wms. 103 as annotated 2 L. Cas. Eq., White & Tudor, p. 1446.]
Custody of Minors: Jurisdiction.
III. Whether this jurisdiction had its origin in the fiction of the right of the king as
parens patriae,
to which we referred approvingly in State ex rel. Cave v. Tincher, 258 Mo. 1, which right it is contended reverted to the king as the general protector of all the infants in the realm after the abolition of the Court of Wards (3 Bl. Comm. 426; 2 Fonbl. Eq. B2, pt. 1, ch. 2, sec. 1, note a; Eyre v. Countess of Shaftesbury, 2 P. Will. 118; Wellesley v. Wellesley, 2 Bligh (N. S.) 136; Wellesley v. Duke Beaufort, 2 Russ. 1, 20; Cary v. Bertie, 2 Vern. 333; Morgan v. Dillon, 8 Mod. R. 135;
DeManneville v. DeManneville, 10 Ves. 52, 63; Ex parte Phillips, 19 Ves. 118); or that it arose from considering guardianship in the nature of a trust, and trusts being the favored objects of equity, that the jurisdiction had this broad general foundation (Duke of Beaufort v. Berty, 1 P. Will, 705; 3 Story, Eq. Juris. (14 Ed.) see. 1745 and notes); or that it had its origin in one of the old common-law writs in relation to wards (Coke Litt. 89a, Hargrave’s note 70; 2 Fonbl. Eq. B2, pt. 2, ch. 2, sec. 1); or that it was originally an usurpation for which the best possible excuse was that if afforded opportunity for the beneficent exercise of a power peculiarly equitable in its nature which had not otherwise been sufficiently provided for, is immaterial so far as any of these theories may in a determinative way affect the matter at issue. [3 Story, Eq. Juris, see. 1747 and notes.] We have stated them simply to show the manner in which the question has been mooted; even this array will not suffice to cover the entire field of conjecture, for it is at best nothing mor.e, to which resort has been had to account for the origin of this jurisdiction. This much is certain, it exists and has been exercised by courts of equity for more than two centuries in England .and in the different states of this Republic for shorter periods of time but for like reasons and purposes. [See English and American cases cited in 3 Pom. Eq. Juris. (4 Ed.) notes 1 and 2 to sec. 1304, p. 3141; In re Agar-Ellis, 24 Ch. Div. 317; In re Elderton, 25 Ch. Div. 220, 20. R. C. L. sec. 14, p. 599; Neville v. Reed, 134 Ala. 317; Kelsey v. Green, 69 Conn. 291; Lally v. Fitz-Henry, 85 Iowa, 49; Meritt v. Swimley, 82 Va. 433, 3 Am. St. 115.]
It will be seen not only from the lucid text of Pom-eroy but from the adjudicated cases, that the inherent power of a court of equity over the persons and estates of infants is very wide. [United States to use of Hine v. Morse, 218 U. S. 493.] While it is technically true that a requisite to jurisdiction is that the infant must be a ward of the court, it is not necessary that it be a public charge or that the purpose of the proceeding be
to so declare it, as was the purpose in the Tincher case, supra; - it becomes the ward of the court when it is brought before it for any purpose; and any proceeding or application in .equity relating directly to the infant is sufficient. [Gynn v. Gilbard, 1 Drew
&
S. 356; In re Potter, L. R. 7 Eq. 484; In re Graham, L. R. 10 Eq. 530; In re Hodge’s Settlement, 3 Kay & J. 213; Butler v. Freeman, Amb. 302; Rivers v. Durr, 46 Ala. 418; Williamson v. Berry, 8 How. (U. S.) 495, 531, 12 Law Ed. 1170; 20 R. C. L. sec. 15, p. 601 and notes; see also annotations to Faulkner v. Davis, 98 Am. Dec. l. c. 733, 14 R. C. L. 267 sec. 42, n. 10.] Statutory regulations as to the custody and care of infants will not affect the court’s jurisdiction. [Anon. 55 Ala. 428; Bryan v. Bryan, 34 Ala. 516; Moore v. Moore, 66 Ga. 336 ; State v. Thompson, 117 La. 102; People v. Parr, 121 N. Y. 679; 29 Cyc. 1602 and notes.]
The infant’s ownership of property is not essential to the existence of jurisdiction. We have shown that this question is eliminated at bar on account of the findings of the trial court. If not eliminated, an allegation in the pleadings and the trial court’s findings in regard thereto might he regarded as mainly formal, and a failure to show the existence of property could not he successfully urged for the purpose of defeating the jurisdiction. In England as well as in this country, well considered cases sustain the exercise of this jurisdiction although it affirmatively appeared that the infants had no property. [Johnstone v. Beattie, 10 Clark
&
Fin. 42; Cowls v. Cowls, 3 Gilm. 435, 44 Am. Dec. 708; Maguire v. Maguire, 7 Dana, 181.]
In this connection a learned Federal judge made the following pertinent statement: “If a court has jurisdiction where the matter in dispute is a mere right of property, why should its jurisdiction not extend to a more important controversy where the custody and control of' a child is the matter in dispute?” [Bennett v. Bennett, Deady (U. S. Dist. Court Rep.) 321.]
Reasons for Exercise of Jurisdiction.
IV. Brushing aside, therefore, these purely technical questions as to wardship and the possession of property, what are the impelling reasons for the exercise of the jurisdiction of courts of equity in cases as at bar? The welfare of the child, its life, health and moral and intellectual being are, in a proper exercise of the court’s power, to be kept well in view in all controversies concerning its custody, care and control. In addition, if the court be imbued with that spirit of patriotism which should always prompt judicial action along with a proper consideration of the rights of litigants, the welfare of the child should be looked to as a future member of society upon whom in the fullness of time will fall its share of the burdens and responsibilities of citizenship. This may be more homiletic than juridical, but is not the judiciary more immediately charged with the public welfare than either of the other co-ordinate powers of government?
In the evolution of equitable jurisdiction we find that, in a proper case where it appears that the welfare of the infant will be best promoted by removing it from the custody of its guardian, this power may be exercised, although it may result in taking the child from its own parents or in placing it in the custody of one to the exclusion of the other. The paramount right of a father to such custody, upon which this court has explicitly ruled (State ex rel. Crockett v. Ellison, 271 Mo. 416), need not be considered, and, while it may be conceded, as a general proposition, it will not suffice to shorten, the arm of equity to prevent its reaching the father to deprive him of the child’s custody and transfer it to the mother, where by his moral turpitude he has forfeited the right to such custody. In thus overruling the father’s paramount claim and substituting therefor its own discretion, the court is moved not by a purpose to punish the father but to protect the children and promote their welfare. This accords with right reason and is a proper exercise of the power of a court of conscience. The cor
rectness of this conclusion is rendered more evident when we consider that however paramount and immune from interference may he the parent’s right to priority of custody, this right is not an absolute one, and if the parent is found unfit it must give way to the welfare of the child. [State ex rel. v. Ellison, supra; Weir v. Marley, 99 Mo. l. c. 495; In re Ingenbohs, 173 Mo. App. 261; Ex Parte Smith, 200 S. W. 681; Stapleton v. Poynter, 111 Ky. 264, 53 L. R. A. 784 and notes; Re Lally, 85 Ia. 49, 16 L. R. A. 681; State ex rel. Lasserre v. Michel, 105 La. 741, 54 L. R. A. 927; Nugent v. Powell, 4 Wyo. 173, 20 L. R. A. 199; Van Walters v. Board, 132 Ind. 568, 18 L. R. A. 433 ; Lynch v. Rotan, 39 Ill. 14; Downin v. Lessors, 35 Md. 474; Lee v. Lee, 55 Ala. 590; In re Stockman, 71 Mich. 180; 3 Story, Eq. (14 Ed.) sec. 1752.]
Nor is the power of the court to be impaired because the wife, although entitled to a decree of separation, waived her right thereto and insisted only that the husband be required to make provision for herself and the children and that she be awarded the custody of the latter. Cases which hold that a court’s right to the determination of the custody of children is dependent upon a decree of divorce will be found upon an .examination to be limited to those in which the right to the custody was sought as an incident to the suit for the decree, and not, as in the instant case, to the purely equitable ground of the unfitness of the father to continue in the exercise of that right. In the majority of the cases cited in this opinion in support of the court’s .jurisdiction the gravamen of the action was not to secure a decree of divorce but to determine the custody of the children. In Wellesley v. Wellesley, supra, which may be considered as one of the leading cases on the subject, the purpose of the suit was to determine the custody of minors. In numerous other cases where a decree of separation was sought and denied, the courts have nevertheless awarded the custody of minor children to one parent or the other as the facts warranted. [Horton v. Horton, 75 Ark. 22; Robinson v. Robinson,
146 App. Div. 533; Davis v. Davis, 75 N. Y. 221; Light v. Light, 124 App. Div. 567; Cornelius v. Cornelius, 31 Ala. 479; Anon. 55 Ala. 428; Luck v. Luck, 92 Cal. 653; Hoskins v. Hoskins, 28 Ky. L. Rep. 435; Knoll v. Knoll, 114 La. 703; Power v. Power, 65 N. J. Eq. 93; Lusk v. Lusk, 28 Mo. 91; Defee v. Defee, 51 S. W. (Tes.) 274; Baird v. Baird, 21 N. J. Eq. 384; Matter of Tierney, 128 App. Div. 835; 19 C. J. 789, 794 and notes.]
Habeas Corpus: Procedure.
V. The jurisdiction of the trial court having been established, only passing consideration need be given to the formal character of the proeeed-ing. It was, as stated, a suit in equity for maintenance and the custody of the children. Many precedents sustain the propriety of this form of proceeding. In others, to effect a like purpose as to custody,
habeas corpus
has not improperly been resorted to. In such cases it is not the limited jurisdiction of this writ that is invoked, because the proceeding is not directed towards freeing children from imprisonment, but. to exercise the broader power of courts of general equity jurisdiction over the custody of the persons of infants. • An admirable modern compendium of legal principles makes the following deductions from numerous cases:
“The ascertainment and enforcement of the custody of minor children by the use of the writ of
habeas corpus
is of an equitable nature, and in. such cases the question of personal freedom is not involved, for an infant, from humane and obvious reasons, is presumed to be in the custody of someone until it has attained its majority; and the court, when asked to restore an infant, is not bound by any mere legal right of parent or guardian, but is to give it due weight as a claim founded on human nature, and generally equitable and just. Therefore these cases are not decided upon the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but upon the court’s view of th.e best interests of those
whose welfare requires that they he in custody of one person or another; and hence a court is in no case hound to deliver a child into the custody of any claimant or of any person, hut should, in the exercis.e of a sound judicial discretion after a careful consideration of the facts, leave it in such custody as the welfare of the child at the time appeal’s to require.” [12 .R. C. L. 1215.]
Mr. Justice BeNSON, of the Supreme Court of Oregon, in discussing this question says, in effect: The nature of the investigation, the peculiar latitude involved in the inquiry, the nature of the relief sought and granted, present an irresistible demand for the intervention of a court of equity. In the absence of our statute it must he conceded that a court of equity would have jurisdiction ... It has been held, however, that no Legislature can abrogate or impair the efficiency of the writ, and its use as it was available at common law is still available in courts of equity; and the fact that the Legislature has seen fit . only to provide a procedure for its exercise in cases for which it was originally designed and is silent as to the procedure in cases calling for the exercise of chancery powers, it follows that.proceedings in equity are still available. [Turner v. Hendryx, 86 Ore. 590.]
Chancellor SteveNsoN, of the Court of Errors and Appeals of New Jersey, in speaking for that court in a case involving the same issue as that at bar, said:
“It is not the limited jurisdiction upon
habeas corpus
which is exercised by the justices of the supreme court as well as the chancellor which is invoked in this case. The petition is not directed towards freeing this little child from imprisonment. The pleadings set forth in detail the claims of the contending parties to the custody of the infant, and the proofs have been directed toward sustaining and defeating respectively each of these hostile claims. The broad jurisdiction invoked is the ‘general equity jurisdiction over the custody of the person of infants which the chancellor exercises as
parens patriae’
(Citing cases).” [In re Flynn, 87 N. J. Eq. l. c. 414.]
These ruling’s authorize the conclusion that if another form of action than that of a hill in equity has been resorted to — for example,
hateas corpus
— the chancery powers of the court must he invoked to determine the issue. [Campbell v. Campbell, 76 Mo. App. 396; Green v. Campbell, 35 W. Va. 698, 29 Am. St. 843; Armstrong v. Stone, 9 Grat. 102; Brooke v. Logan, 112 Ind. 183, 2 Am. St. 177.] Having been determined, the court will so exercise its prerogative, under all the facts, as will best promote the welfare of the child, regardless of its -wishes or inclinations. [Moore v. Christian, 56 Miss. 408, 31 Am. Rep. 375; In Re Swall, 36 Nev. 171; Jones v. Harmon, 27 Fla. 238; 21 Cyc. 330, note 61.]
From all of which it appears that the petitioner is held in custody upon the judgment of a court of competent jurisdiction and that-the writ of
habeas corpus
was improvidently issued and should be quashed and the petitioner remanded to the- custody of the sheriff of Bates County. It is so ordered.
All concur, except Graves, J., who dissents;
Woodson, J.,
concurs in the result.