Reversed December 11, 1917.
On the Merits.
(169 Pac. 109.)
In Banc. Statement by Mr. Justice Benson.
This is a proceeding by habeas corpus wherein the father of the infant child, Charles R. Turner, seeks to regain the custody of the hoy from the defendants. *592The trial court dismissed the writ and awarded the permanent custody to the defendants. The petitioner appeals. Reversed. Degree Rendered.
For appellant there was a brief over the name of Messrs. Hurlburt & Layton, with an oral argument by Mr. TF B. Layton.
For respondents there was a brief and an oral argument by Mr. John C. McCue.
Mr. Justice Bensondelivered the opinion of the court.
It is urged by respondents that habeas corpus is a proceeding at law rather than in equity and that since there is no bill of exceptions this court can only consider the question as to whether or not the findings of fact support the judgment. This theory is based upon the language of Section 669, L. O. L., which reads as follows: -
“Any party to a proceeding by habeas corpus, including the state when the district attorney appears therein, may appeal from the judgment of the Circuit or County Court refusing to allow such writ or any final judgment therein, either in term time or vacation, in like manner and with like effect as in an action. No question once finally determined upon a proceeding by habeas corpus shall be re-examined upon another or subsequent proceeding of the same kind.”
In the consideration of this problem, it is logically necessary to consider the origin and purpose of the writ which has been invoked in this case. An excellent authority has said:
“Relief from illegal imprisonment by means of habeas corpus is not the creature of any statute, and *593the origin and history of the writ are lost in antiquity”: 12 R. 0. L., p. 1180.
The same authority further says:
“The writ of habeas corpus, designed and admirably adapted to secure individual freedom, has come to be applied to other uses, and among them, to the ascertainment and enforcement of the right of custody of infant children”: 12 R. C. L., p. 1214.
‘ ‘ The ascertainment and enforcement of the custody of minor children by the use of the writ of habeas corpus is one 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 some one 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 the best interests of those whose welfare requires that they be in custody of one person or another; and hence a court is in no case bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise 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 appears to require”: 12 R. C. L., p. 1215.
It is useless to cite other authorities to this doctrine for the quotations above set out voice the unanimous verdict of both text-books and cases.
2. Of course this use of the writ is not the original one nor is it to-day the dominant use, for the reports of our state disclose but one other case in this state where it has been invoked for this purpose: Ex parte Barnes, 54 Or. 548 (104 Pac. 296, 21 Ann. Cas. 465, *59425 L. R. A. (N. S.) 172). In that case it was treated by opposing counsel and by this court without question, as an equitable proceeding and accorded a de novo hearing. This we think was clearly proper. The very nature of the investigation, the peculiar latitude involved in the inquiry, the nature of the relief sought and granted, all present an irresistible demand for the intervention of a court of equity. In the absence of our statute, quoted supra, it must be conceded that a court of equity would have jurisdiction. It has been held that since the Constitution, in its provision for maintaining the writ at all times except when in rebellion or invasion the public safety requires its suspension, is a protection of the writ as it obtained under the common law, no legislature can abrogate or impair its efficiency: People ex rel. Tweed v. Liscomb, 60 N. Y. 559 (19 Am. Rep. 211); Servonitz v. State, 133 Wis. 231 (113 N. W. 277, 126 Am. St. Rep. 955); from all of which we conclude that the use of the writ, as it was available at common law, is still available in courts of equity, and the fact that our legislature has seen fit only to provide a mode of procedure for its exercise in the cases for which it was originally designed, and is silent as to procedure in cases calling for the exercise of chancery powers in connection therewith, it follows that the statutory proceedings in equity cases are still available in this proceeding, which is clearly sui generis. We shall therefore consider the case as pending before us a de novo hearing. •
3,4. We come then to a consideration of the evidence. From the evidence it clearly appears that the child was born on December 12,1911, in Clarke County, State of Washington; that the mother died a few hours, after the birth; and that it was at once decided that the father (petitioner) should take the body of his *595dead wife to White Salmon, her former home, for burial. The presence of the new born babe aroused a discussion of its immediate care. According to her own testimony, the defendant Jennet E. Hendryx, a sister of the deceased mother, being present, said, “Give it to me and I will raise it”; to which she says the father replied, “You shall have it.”- The father disputes this version and insists that he consented only to a temporary care of the babe by her. The father was gone three days on his trip to White Salmon and on his return left the child in the care of defendants who then lived on a farm about two miles from that of petitioner. While they were such near neighbors the father visited his child weekly but after a time defendants moved; first to eastern Oregon and later to a mine in southern Oregon, finally locating in Portland, during all of which time they kept the child with them. The father sent them small sums of money from time to time to aid in caring for the infant although the amount so remitted is uncertain. The defendants insist that they only received $105 from the father, while he maintains that it was a much larger sum. When the child was about five years old the father married again and has made several attempts to regain possession of the little boy, culminating in this proceeding. There is no evidence which tends to indicate that the petitioner is in any way unworthy or unfit, to have the custody of his child nor is any question suggested as to the character of his wife. The evidence certainly does not disclose any conduct indicating an abandonment unless it be found in the testimony of Mrs. Hendryx in regard to the conversation had at the time of the mother’s death when she urges that he gave the infant to her. Such evidence does not justify a court in ignoring the natural rights *596of a father and, even if it were undisputed, the great weight of authority is to the effect that the father has a right to revoke such an agreement since a child is not a chattel, subject to sale or cold-blooded bargaining. The case of Ex parte Barnes, 54 Or. 548 (104 Pac. 296, 21 Ann. Cas. 465, 25 L. R. A. (N. S.) 172), is a case so completely in point that we adopt as the law of this case the reasoning found therein. The decree of the trial court is reversed and one will be entered here awarding the custody of the infant to petitioner. Eeversed. Decree Eendered.
Mr. Chibe Justice McBride, Mr. Justice Bean, Mr. Justice Moore and Mr. Justice McOamant concur.