delivered the opinion of the court.
Thе first major question to be determined in this case is whether a money award, for the future maintenance of a wife, divorced in another state, and children, rendered in a habeas corpus proceeding, is voidable or void.
John R. Buchanan and Ruth Lester were married on January 15, 1916. The three children, a daughter and two sons, born to this union, were, on September 29, 1933, sixteen, fourteen, and eleven years of age, respectively. The
John R. Buchanan, on June 27, 1933, filed, in the Circuit ■Court of Fauquier county, a petition for a writ of habeas corрus, alleging, among other things, that his divorced wife, Ruth L. Buchanan, was not a suitable person to have the custody of her minor children; -that pursuant to his promise in the contract of separation he had paid her $1,500 a month for the upkeep of “Leny Manor,” their country estate in Fauquier county, as a home for herself and children ; and that she had failed to expend these monthly payments according to the provisions of the contract. He further alleged that it was impossible for him, on account of his contract with his wife, to maintain a home for his children at “Leny Manor.” He offered to sеcure other property in Fauquier or Loudoun counties for this purpose.
To this petition, respondent filed an answer attacking the decree of the divorce obtained in Reno, Nevada, admitting the execution of the contract of separation, but denying that any part of its terms had been broken or that she was an improper person to have the custody of her minor children.
After issue was thus joined in the
habeas corpus
proceedings, the court on September 29,- 1933, by consent of the parties, entered an order making very little change in the provisions of the contract of separation so far as the custody of the children was concerned, but making substantial changes in the property rights of the parties. The monthly
John R. Buchanan now seeks a review by this court of a subsequent order of the trial court holding him in contempt for failure to comply with that part of the order of September 29, 1933, directing him to pay to Ruth L. Buchanan the sum of $375 a month.
A successful collateral attack made upon a judgment of a court of general jurisdiction must show the judgment to be void, not merely voidable.
The primary object of
habeas corpus
is to determine the legality of the restraint under which a person is held. As applied to infants, the primary object is to determine in whose custody the best interests of the infants will probably be advanced. In determining such custody, the natural rights of the -parents are entitled to due consideration. “By immemorial tradition the aim of
habeas corpus
is a justice that is swift and summary.”
People ex rel. McCanliss
v.
McCanliss,
In Armstrong v. Stone and Wife, 9 Gratt. (50 Va.) 102, the court said: “It is further argued that it is not the function of a writ of habeas corpus to try rights of property or settle questions of guardianship, but simply to release from improper confinement; and if it appear there is no improper restraint upon the minor, the court should not interfere.
“It is true that a contest for the guardianship could not properly be determined upon a writ of habeas corpus. The law has prescribed another form for settling such controversies. * * *
“Whilst, therefore, it is undoubtedly true that the proper office of the writ is to release from illegal restraint, and, where thе party is of years of discretion and
sui juris,
This court has consistently held the issue in a
habeas corpus
proceeding to the narrow limits stated above. In
Hayes
v.
Strauss,
In
Foulke
v.
People,
“It will therefore be seen that the proceeding is confined in very narrow limits, and cannot be extended to the adjudication of claims or money demands and unsettled accounts between the parties; the only jurisdiction of the court was to determine whether the father or aunt had the better right to the child, and decree it to such custody.”
The precise question-was decided adversely to the contention of defendant in error in
People ex rel. Prior
v.
Prior,
In
People ex rel. Klee
v.
Klee,
The single issue in this class of actions is the proper custody of the infant. Obedience to a judgment rendered on such an issue is enforced by seizure and restraint of the person. Obedience to a judgment or decree for money, in the absence of statute conferring other powers upon the court, is now imposed by seizure of defendant’s property. The order modifying the agreement оf the parties regarding their property rights and making a money award, entered in a habeas corpus proceeding, was not pertinent to the allegations, prayer or issue presented. Hence, as a judgment settling property rights in a habeas corpus proceeding, the order to the extent indicated, is void, but, having been entered by consent, it is evidence of binding contractual obligations. Appellees, without statutory aid, are attempting to enforce a voluntary settlement of property by seizure and restraint of the person. See 12 R. C. L. 1184, 1215, 1238; 84 A. L. R., note 813.
The second major question presented is whether, in an independent action at law, instituted by minor children and a divorced wife, the court has jurisdiction or power to compel a father to pay out of his income a definite sum each month for the future support, maintenance, and education of his minor children.
The consent order of September 29, 1933, entered in the
habeas corpus
proceeding, directed the clerk to place the case on the inactive docket. On November 26, 1934, Ruth L. Buchanan in her own right and as next friend of the two minor sons, moved the court to put the case on its pending
John R. Buchanan appeared by counsel, waived process, filed an answer and cross-complaint denying the pertinent allegations of the petition, and making numerous averments as to his finаncial status, and for the second time alleged that Ruth L. Buchanan was unfit to have the custody of the minor children, and asked to be relieved of making any other monthly payments to her.
The case was heard on the pleadings, the depositions of witnesses, and testimony taken
ore tenus.
After the court
On the 18th of December, 1935, John R. Buchanan asked leave to file a bill of review on two grounds—errors apparent on the face of the record, and newly discovered evidence. Ruth L. Buchanan, in her own right, and as next friend of her two sons, made objection to the filing of this bill of review. After some delay the court declined leave to file the bill and assigned the following reasons for the ruling:
“1. That this proceeding was an action at law, having had its inception in the filing by the petitioner of a Writ of Habeas Corpus;
“2. That in the entry of the order based upon the original writ, the Court properly had authority to retain the action on its docket for such further proceedings as might come to be proper;
“3. That the Court had jurisdiction to enter the order for custody, maintenance and education of the infant children of the parties especially since the entry of such an order was suggested by counsel for John R. Buchanan in his argument.
Exceptions were duly taken to the ruling of the court in its refusal to entеrtain the bill of review, but no appeal to this court was perfected.
A rule was issued against John R. Buchanan for failure to pay his divorced wife $750 per month, $375 as directed in the order of September 29, 1933, and an additional $375 as directed in the order of June 24, 1935. In answer to this rule, he made defenses which were overruled, and later assigned the same defenses, and the refusal of the court to sustain them, as errors in the petition to this court.
The petition filed by the minors and their mother, is not an action at law to recover for necessaries furnished by a third party to a father’s minor children based on thе common-law obligation of the father. See
Moreland
v.
Moreland,
This is not an action at law to recover damages for a breach of contract. The petition contains no allegation that John R. Buchanan failed to pay Ruth L. Buchanan the sum of $375 per month “for the establishment of a home suitable for herself and the children.” The allegations in the petition do not conform to allegations of a bill in equity by a divorced wife to compel specific performance, by a former husband, of a contract to pay the wife an annuity, as was the case in
Eschner
v. Eschner,
. The petition contains some allegations appropriate to a petition for a writ of
habeas corpus,
but most of the allegations pertain to financial matters. There are paragraphs alleging failure to pay obligations incurred by the mother and boys for the benefit of the latter; other paragraphs deal with the refusal of the husband to settle, or even discuss with the mother the proper schools for the children to attend; and still others are based apparently on the assumption that in an action to ascertain the proper custody of
The pleading, except insofar as it pertains to the custody of infants, is not appropriate to an action at law or a bill in equity. If it was intended to be based on contract, damage for its breach is not stated with certainty. If it was intended to be based on the common-law obligation of the father to support his infant children, the amount claimed to be due or to become due is not stated. However, the trial court gave relief under both theоries, but, in order to ascertain the proper amount of past due indebtedness, the papers in the case were referred to a special commissioner to ascertain the amount of bills incurred and unpaid.
The commissioner’s report was duly confirmed and judgments entered thereon against the father in favor of the different parties with whom the mother and sons had contracted. The court then ascertained the annual income of the father during the preceding five years, and his probable income for the next few years, and fixed the common-law obligation of the father to support and educate his two sons at $375 per month, in addition to the sum set forth in the order of September 29, 1933. As John R. Buchanan was held in contempt only for his failure to pay his divorced wife the sum of $375 monthly, under this order, which is brought under review by this writ of error, the validity of the judgments against him for unpaid accounts is not before us for adjudication.
Mr. Minor in his Institutes, vol. I, p. 405, states the common-law duty of a father thus: “The wants and weakness of childhood render maintenance by some one other than the child himself indispensable, and the voice of nature indicates the parent, that is the father, as the fittest person to afford it. The duty of maintenance on the part of fathers in respect to their
infant
children is, therefore, a principle of
natural law,
the right to which, on the part of such children, is insisted upon as a
perfect right
by
“The municipal laws of all well regulated societies take care to enforce this duty; though Providence has done it more effectually by implanting in the heart of every parent that unquenchable affection which not even the deformity of person and mind, nor the wickedness, ingratitude, and rebellion of children can totally extinguish.”
The obligation of a father to support his minor children is similar to a husband’s obligation to support a blameless wife. Judge Kelly on this subject in
Mihalcoe
v.
Holub,
A. discharge in bankruptcy of the father does not constitute a bar to his continuing legal obligation to support minor children, even when the obligation is evidenced by contract, and the minor children are living, by the consent of the father, with the mother who was divorced from her husband on the ground that she had deserted him.
Dunbar
v.
Dunbar,
The jurisdiction of the trial court to enforce the common-law obligation of the father for future maintenance and education was invoked by a joint petition of the infants themselves and the mother. Actions or suits,, by or in' behalf of a child against its parent, should not be encouraged. They tend to disturb the cordial relationship that should exist by virtue of blood ties. Such actions, if allowed, render ineffective parental discipline so necessary to the welfare of the child. They open the door of the court to an unruly or disobedient child who may complain of either the amount or kind of support and maintenance provided by the parent.
Worthington
v.
Worthington,
212 Mo. App.
Each parent is financially able to pay or advance the necessary sum to defray the cost of maintenance and education of the two boys. The father has remarried and has other obligations, but he receives one-third of the annual income of a trust fund of $3,000,000. His part of this income is about $50,000 per year. The mother received from the father, under the contract of May 18, 1931, $150,000 in cash and securities. On $125,000 of this amount, she receives six per cent, interest. Her annual income since 1931 has been in excess of $16,000. In addition, her husband has paid, or agreed to pay, several bills incurred by her, totaling more than $15,000.
The judgment of the court on its common-law side, so far as it attempted, in this action by minors, to compel their father to provide them an income out of his estate for their future support and education, is void. To hold otherwise, in this case, would empower the court, on the application of minors, to send their father to jail for his refusal to pay their expenses at some private school of their own selection, although the father was willing to pay their expenses at other schоols. To state the proposition, reveals its unsoundness.
The mother, in this court, contends, contrary to her contention in the lower court, that these proceedings should be regarded as invoking the parental and protecting power of the commonwealth in a chancery court to
Minor in his Institutes, vol. I, p. 482, states this power thus: “This (bill in equity) is the most direct, usual, and eligible remedy, in general, to try the right of the parent to the custody of the child. The court of chancery, as representing the parental and prоtecting power of the Commonwealth, has jurisdiction to determine controversies concerning the guardianship of a minor; to make orders for his support, if any property capable of being so applied be within the reach of the court; and in extreme cases, as we have seen, even to control the right of a father to the custody of his child.”- Citing Code 1887, section 2609 (Code 1936, section 5326).
The minors in question have no property subject to -control of the court. If it be contended that they have property rights in the contract between their father and mother, the court -did not attempt to enforce these contractual obligations as to future expenditures.
The mother also contends that a court of equity has power, under the recent amendment to Code, section 5111, to enforce the common-law obligation of the husband as to future support. This section authorizes a court of equity, in a divorce suit on the petition of either party, after a final decree, to “revise and alter such decree concerning the care, custody, and maintenance of the children and make a new decree concerning the samе, as the circumstances of the parents and the benefit of the children may require.”
One answer to this contention, is that this is not a suit for divorce. There is no decree to be revised. Another complete answer to both of the foregoing contentions, is that the pleading does not purport to be a bill in equity. It is a hybrid pleading. No one is better qualified to determine the class of proceedings to which this belongs than the trial judge, who pronounced the judgments in question. He has emphatically declared this to be a
habeas corpus
proceeding. On that ground he declined to consider the bill
It is further contended that the plan to compel the father to fulfill his common-law obligation for the future support and education of his sons was adopted at the suggestion of the father’s attorney. It appears that the attorney did make some such suggestion, but this suggestion was to eliminate the payment of $375 per month as set forth in the order of September 29, 1933, and in lieu thereof pay the mother $100, or perhaps $200, a month for the future education of the boys. The court adopted the scheme by fixing the monthly payments at $750 instead of the $200 suggested. As soon as this decision was known to the attorney, he filed objections to the entry of the order. Consent does not give jurisdiction of the subject-matter. There was no consent to this order.
The court, whether acting under its common-law powers or under its chancery powers, must act judicially in all cases. It cannot transcend this power. “Hence, if an action be upon a money demand, the court would have no power to pass judgment of imprisonment. If for libel or personаl tort, it could not order specific performance of a contract. If for possession of real property, the court could not admit in the case the probate of a will. The judgments in the supposed cases would be absolutely void, because the court, in rendering them, would transcend the limit of its authority in those cases.” Bailey on Jurisdiction, p. 20.
At the time of the Revolution, the distinctions between common-law and chancery jurisdiction were as sharply drawn in Virginia as they were in England. Since 1776, these distinctions have been somewhat modified by statute, but the essential distinctions are, in a lаrge measure, still maintained, though exercised by the same judge, on procedure appropriate to each forum. These distinctions have not been, and should not be, modified to the extent that
Judge Kelly, speaking for the court in
Litz
v.
Rowe,
“In his Notes on Equity Jurisprudence, at p. 8, Prof. W: M. Lile says 2 Tt is settled, save possibly in Massachusetts; that consent cannot confer jurisdiction—that is to say, if a suit which properly belongs to a court of law be brought in equity, even though the defendant make no objection, and be willing that equity shall adjudge the matter, the chancellor himself will take notice of the defect of jurisdiction and the cause will be dismissed.
*******
“This is not the case of a plaintiff coming in an irregular manner into a proper forum and seeking later to take advantage of errors committed at his instance or through his default or acquiescence. The difficulty here is that the proceedings were had in a forum háving no jurisdiction of the subject matter.”
The contract between mother and father is not before this court for construction; however, such a contract is not binding upon a court, as to the custody of infants, nor will the courts permit a parent, under any or all circumstances, to transfer to another his common-law obligation to his children. The custody and welfare of children are not the subject of barter. In this case, the father has not by contract severed his right to participate with the mother in supervising the education of his children. The court has deprived him of that right on the application of the children themselves, acting jointly with the mother. The father, by his conduct, may have forfeited the right to participate in the supervision of the education of his children; if so, the mother may defray the expenses оf their maintenance and education, and recover for all moneys so expended. See
Kelly
v.
Kelly,
The trial court had jurisdiction upon the petition filed by the mother, even if improper parties were joined, to determine the custody of the children. It had no jurisdiction or power, in the procedure adopted, to determine the
For the reasons stated, the judgment of the trial court, holding John E. Buchanan in contempt, is reversed, and the case remanded, with direction to release him from custody.
Reversed.