PiNNEY, J.
At the common law the husband was primarily liable for the support of his minor children. 2 Kent, Comm. 190. In McGoon v. Irvin, 1 Pin. 532, it was said that “ by every principle of law upon the subject, recognized and strengthened by our statute, parents are under legal obligation to maintain and support their children who are of tender years and helpless.” The statute (K. S. 1878, sec. 1503) makes the father primarily liable to support his minor children. When the marriage is dissolved by divorce, the duty of parents to maintain their children remains as before, for children are not parties- to the divorce suit and do not lose any rights thereby. Hence the father’s duty to maintain them after the divorce, where there is no decree of the court relating thereto, especially if their custody is not [433]*433taken from him, remains as before. After the parents were divorced all duties and obligations to each other- ceased, and they became as strangers to each other. Nelson, Div. & Sep. § 981. The claimant owed the husband no duty as ivife, and her duty to support the child continued, as before, secondary, and his primary. 2 Bishop, Mar., Div. & Sep. § 1210; Plaster v. Plaster, 47 Ill. 292. It is generally laid down that the liability of the husband to a divorced wife, in respect to the support of the children, is the same as to any other third person, except as provided in the decree. If the court makes no order either for custody or support of children of the marriage, the divorce leaves the father’s liability as at common laAv, and the mere divorce does not terminate his liability. 2 Bishop, Mar., Div. & Sep. § 1220; Thomas v. Thomas, 41 Wis. 233. In a proper case, it seems, after the marriage is dissolved, he may be answerable to the mother for maintenance rendered the children while living with her. Stanton v. Willson, 3 Day, 37; Buckminster v. Buckminster, 38 Vt. 248. The father is under legal obligation to provide for the support of his children, even if they remain with their mother after her divorce, and, as against the public and the children, he cannot escape the duty. Courtright v. Courtright, 40 Mich. 633. Where the decree has granted the custody of the children to the wife and contains no provision for their support, it has been held that the father is not liable for the support of the children. But this is upon the ground that, the statute having made it the duty of the court to provide for their custody and maintenance upon divorce, it will be presumed that the decree has made all the provisions on that subject that ivere necessary; that the decree is conclusive as to the respective rights and obligations of the parties, subject to the right to have it modified as subsequent exigencies may require. As the decree makes the parties strangers as to each other, it is generally considered that a divorced husband is not liable [434]*434to his divorced wife for necessaries furnished a child of the marriage in her custody unless by agreement, express or implied; that there must be either an express promise, or facts from which one can reasonably be inferred. Ramsey v. Ramsey, 121 Ind. 215; Cushman v. Hassler, 82 Iowa, 295. And. it has been considered that the support of the child, under such circumstances, by the mother, was but the voluntary performance of a natural duty, and that her remedy was to apply to the court for maintenance of the child when the divorce was granted. These, and other cases of a similar purport, are confidently relied on as decisive against the claimant.
In McGoon v. Irvin, 1 Pin. 532, where the husband had procured a legislative divorce from his wife, and had left the minor children of the marriage in a family of a third person to be supported, the mother afterwards obtained the custody of the children without his knowledge and consent, and refused, on demand made in behalf of the father, to give them up. She afterwards intermarried with I., and the children were supported and educated by him. In an action by L against the father to recover for their support, it was held that McG-. had a legal right to the custody of the children, but, as he had not attempted to assert it against I., the law would presume that McG-. had assented to their being in the control and custody of I.’s wife, their mother, and that I. could recover, though the act of the mother in obtaining the custody of the children before her second marriage might have been wrongful. And it was said by the court that “ when a parent permits a stranger to maintain, support, and instruct such children, in no way objecting to the act,, but rather assenting and advising therein, the law will presume that he knows his obligations, accepts the services, and assumes to pay.” It was also said that “ there was no duty or obligation on the plaintiff to notify the defendant to take the children away, or leave them to suffer until he could see [435]*435the defendant and make an express contract about their support and maintenance. Such a course would have merited the reprobation of every humane and upright man. .The defendant had the legal right to the possession, and could have enforced it at any time. He should have first moved in the matter, and, on failure to do so, the law would presume that possession elsewhere was with his approbation and consent.” In the leading case which holds the father liable, under circumstances like the present, the court approves the doctrine that, if a minor is forced out into the world by the cruelty or improper conduct of the father, necessaries may be supplied, and the value thereof may be recovered from the parent. “ There is evidently no satisfactory reason,” said the court, “for changing the rule of liability, when, through ill treatment or other breach of marital obligation, the husband renders it necessary for a court of justice to divorce the wife and commit to her the custody of her minor children. If, under such circumstances, upon the allowance of alimony with custody of children, the court omits to make an order for the children’s maintenance, the father’s natural obligation to support them is of none the less force. The duty of support is not evaded by the husband so conducting himself as to render it necessary to dissolve the bonds of matrimony and give to the mother the care and custody of the infant offspring. It is not the policy of the law to deprive children of their rights on account of the dissensions of their parents, to which they are not parties, or to enable the.father to convert his own misconduct into a shield against parental liability’-.” But, obviously, this reasoning can only apply where the husband is at fault and the decree is silent as to his liability. Pretzinger v. Pretzinger, 45 Ohio St. 45S, approved in Bishop, Mar., Div. & Sep. § 1223, and in Fulton v. Fulton, 52 Ohio St. 229.
It is to be borne in mind that the divorce in the instant [436]*436case was granted to tbe claimant against her husband, August Zilley, on tbe ground of bis cruel and inhuman treatment. It was bis marital wrongdoing which led to the separation of the parties and the award of the custody of the boy, Clayton, to the mother until he became of the age of ten years. The case as to the subsequent support of the boy, Clayton A.,
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PiNNEY, J.
At the common law the husband was primarily liable for the support of his minor children. 2 Kent, Comm. 190. In McGoon v. Irvin, 1 Pin. 532, it was said that “ by every principle of law upon the subject, recognized and strengthened by our statute, parents are under legal obligation to maintain and support their children who are of tender years and helpless.” The statute (K. S. 1878, sec. 1503) makes the father primarily liable to support his minor children. When the marriage is dissolved by divorce, the duty of parents to maintain their children remains as before, for children are not parties- to the divorce suit and do not lose any rights thereby. Hence the father’s duty to maintain them after the divorce, where there is no decree of the court relating thereto, especially if their custody is not [433]*433taken from him, remains as before. After the parents were divorced all duties and obligations to each other- ceased, and they became as strangers to each other. Nelson, Div. & Sep. § 981. The claimant owed the husband no duty as ivife, and her duty to support the child continued, as before, secondary, and his primary. 2 Bishop, Mar., Div. & Sep. § 1210; Plaster v. Plaster, 47 Ill. 292. It is generally laid down that the liability of the husband to a divorced wife, in respect to the support of the children, is the same as to any other third person, except as provided in the decree. If the court makes no order either for custody or support of children of the marriage, the divorce leaves the father’s liability as at common laAv, and the mere divorce does not terminate his liability. 2 Bishop, Mar., Div. & Sep. § 1220; Thomas v. Thomas, 41 Wis. 233. In a proper case, it seems, after the marriage is dissolved, he may be answerable to the mother for maintenance rendered the children while living with her. Stanton v. Willson, 3 Day, 37; Buckminster v. Buckminster, 38 Vt. 248. The father is under legal obligation to provide for the support of his children, even if they remain with their mother after her divorce, and, as against the public and the children, he cannot escape the duty. Courtright v. Courtright, 40 Mich. 633. Where the decree has granted the custody of the children to the wife and contains no provision for their support, it has been held that the father is not liable for the support of the children. But this is upon the ground that, the statute having made it the duty of the court to provide for their custody and maintenance upon divorce, it will be presumed that the decree has made all the provisions on that subject that ivere necessary; that the decree is conclusive as to the respective rights and obligations of the parties, subject to the right to have it modified as subsequent exigencies may require. As the decree makes the parties strangers as to each other, it is generally considered that a divorced husband is not liable [434]*434to his divorced wife for necessaries furnished a child of the marriage in her custody unless by agreement, express or implied; that there must be either an express promise, or facts from which one can reasonably be inferred. Ramsey v. Ramsey, 121 Ind. 215; Cushman v. Hassler, 82 Iowa, 295. And. it has been considered that the support of the child, under such circumstances, by the mother, was but the voluntary performance of a natural duty, and that her remedy was to apply to the court for maintenance of the child when the divorce was granted. These, and other cases of a similar purport, are confidently relied on as decisive against the claimant.
In McGoon v. Irvin, 1 Pin. 532, where the husband had procured a legislative divorce from his wife, and had left the minor children of the marriage in a family of a third person to be supported, the mother afterwards obtained the custody of the children without his knowledge and consent, and refused, on demand made in behalf of the father, to give them up. She afterwards intermarried with I., and the children were supported and educated by him. In an action by L against the father to recover for their support, it was held that McG-. had a legal right to the custody of the children, but, as he had not attempted to assert it against I., the law would presume that McG-. had assented to their being in the control and custody of I.’s wife, their mother, and that I. could recover, though the act of the mother in obtaining the custody of the children before her second marriage might have been wrongful. And it was said by the court that “ when a parent permits a stranger to maintain, support, and instruct such children, in no way objecting to the act,, but rather assenting and advising therein, the law will presume that he knows his obligations, accepts the services, and assumes to pay.” It was also said that “ there was no duty or obligation on the plaintiff to notify the defendant to take the children away, or leave them to suffer until he could see [435]*435the defendant and make an express contract about their support and maintenance. Such a course would have merited the reprobation of every humane and upright man. .The defendant had the legal right to the possession, and could have enforced it at any time. He should have first moved in the matter, and, on failure to do so, the law would presume that possession elsewhere was with his approbation and consent.” In the leading case which holds the father liable, under circumstances like the present, the court approves the doctrine that, if a minor is forced out into the world by the cruelty or improper conduct of the father, necessaries may be supplied, and the value thereof may be recovered from the parent. “ There is evidently no satisfactory reason,” said the court, “for changing the rule of liability, when, through ill treatment or other breach of marital obligation, the husband renders it necessary for a court of justice to divorce the wife and commit to her the custody of her minor children. If, under such circumstances, upon the allowance of alimony with custody of children, the court omits to make an order for the children’s maintenance, the father’s natural obligation to support them is of none the less force. The duty of support is not evaded by the husband so conducting himself as to render it necessary to dissolve the bonds of matrimony and give to the mother the care and custody of the infant offspring. It is not the policy of the law to deprive children of their rights on account of the dissensions of their parents, to which they are not parties, or to enable the.father to convert his own misconduct into a shield against parental liability’-.” But, obviously, this reasoning can only apply where the husband is at fault and the decree is silent as to his liability. Pretzinger v. Pretzinger, 45 Ohio St. 45S, approved in Bishop, Mar., Div. & Sep. § 1223, and in Fulton v. Fulton, 52 Ohio St. 229.
It is to be borne in mind that the divorce in the instant [436]*436case was granted to tbe claimant against her husband, August Zilley, on tbe ground of bis cruel and inhuman treatment. It was bis marital wrongdoing which led to the separation of the parties and the award of the custody of the boy, Clayton, to the mother until he became of the age of ten years. The case as to the subsequent support of the boy, Clayton A., may well be placed upon the grouhd that the improper conduct of the father had deprived the boy of his rightful and legitimate home, and so gave the right to the mother to supply the necessary support and maintenance, and that the father should be held liable as upon an implied contract, his primary liability still remaining in full force. It is said that the father is released from obligation to maintain his infant children when deprived of their society and services against his will. In Pretsinger v. Pretsinger, supra, it is answered: “If voluntary misconduct on his own part leads to the deprivation, he is himself responsible, and not the court which intervenes for the protection of his children; and if the father, as against a stranger, cannot escape liability for necessaries furnished to his minor children, though regaining with their mother after the divorce, the mother will not be barred of an action against her former husband for the expense of maintaining them. After a dissolution of the marriage relation by divorce, the parties are henceforth single persons, to all intents and purposes. All marital duties and obligations to each other are at an end, and they become as strangers to each other. Upon the establishment of such new relations, a promise may be implied on the part of the father to pay the mother, as well as a third person, who has supplied the necessary wants of his infant child.”
The case of Holt v. Holt, 42 Ark. 495, was one where there had been a decree of divorce giving the custody of infant children to the mother, and it was held that this would not relieve the father from his' obligation to support them,— that he was bound to maintain them as long as they were [437]*437too young to earn their ow,n livelihood; and a court of chancery would, at a subsequent term, entertain the petition of the mother to recover from him her reasonable and proper advances for their support since the divorce, and for an order for their future support. The case of Stanton v. Willson, 3 Day, 37, already cited, was relied on,— “ a decision,” says Ellsworth, J., in Finch v. Finch, 22 Conn. 421, “ well considered, by a court of distinguished and unsurpassed ability, and which, as far as my knowledge extends, has ever been satisfactory to the judges and the profession, and sustained by principles as old as the common law itself.”
It was the right, and the duty as well, of the husband to obtain the custody and control of his infant son, and to support him, after he had arrived at the age of ten years. Ye consider it against the policy of the law to encourage a father thus obligated to attempt to ignore or evade his parental duty, or to cast it upon any other party, so as to enable him to convert such parental neglect and misconduct into a shield against parental liability. Domestic and social duty alike required him, when his son arrived a*t the age of ten years, to enforce his parental rights and discharge his parental duties. He knew they were being exercised and performed by another, who as to him was then an utter stranger, and he knew, also, that the disrupted condition of his family relations had been adjudged in consequence of his marital misconduct. We think the case of Pretzinger v. Pretzinger, 45 Ohio St. 458, and other similar cases, indicate the true rule, and that they are in accordance with sound principles of public policy. Ye think there is ample ground from which the acquiescence and assent of the husband may be justly inferred to the provision made by the claimant for the necessary support and maintenance of his son, and which he had failed to furnish for him, so that a promise on his part to compensate the claimant for what she had so expended may be justly implied, as in the case of McGoon v. [438]*438Irvin, 1 Pin. 532. The cases bearing upon the subject are not, it must be admitted, in. entire accord, but they have turned largely upon questions of public policy in the states where they have been decided.
We hold, therefore, for the reasons stated, that the recovery in favor of the claimant is correct, and should be affirmed.
By the Court.— The judgment of the circuit court is affirmed, with costs against the said appellant to be paid out of the estate of August Zilley, deceased.