respect to take and care for her children."

The defendant testified that she owned real estate in the city of Rome, of the value of from $12,000 to $15,000, from which she had a monthly income of $80; that her family consisted of herself and adult daughter; that her son, the child's father, came from Kansas to her home in July, 1923, and brought the child with him; that he had no property or means of any kind, except about $40; that respondent took her son and grandson in her home and cared for them until her son was killed a few weeks ago; that it was her purpose to rear the child to manhood under the best moral influence, to educate him, and to provide for him in her will; that she was deeply attached to him, and desired to bestow upon him the highest and best privileges that could possibly be awarded to a child; and that in this her daughter is anxious, if necessary, to contribute and assist. The daughter of defendant testified: That she is the only living child of her mother; that witness owns real estate from which she receives a monthly rental of $80, and if necessary at any time in the future, she is willing to assist her mother while

she lives in rearing the child, and to assume the whole burden if she should survive her mother. An admission was made that the defendants are good moral Christian people, and financially able to look after the child. The defendant also introduced a number of other affidavits from people residing in the village in Kansas in which the plaintiff and her husband resided, some of which were to the effect that the plaintiff was not as attentive to her household duties and her children as she might have been. As to this the plaintiff went back on the stand and made a denial.

The foregoing states in substance the evidence as to the character and ability of the respective parties to care for and rear the child. When it is all considered, Infantsthe judge was au- award_of thorized in his dis- custody. cretion in looking to the welfare of the child to award its custody to its mother.

Judgment affirmed.

All the Justices concur.

Russell, Ch. J., dissents on the motion for rehearing.

Petition for rehearing denied December 19, 1924.

This annotation does not include the effect upon the mother's right to the custody of a child of the appointment of a testamentary guardian by the father.

In any contest before a court for the custody of minor children, the welfare of the child or children is the matter of chief importance, and the consideration of their welfare will prevail over any mere preponderance of legal right in one or the other party. 20 R. C. L. 601.

Practically all of the cases cited in this annotation hold that the father cannot contract away the custody of

the minor children, so as to deprive the mother of their custody, especially after his death.

Thus, under a statute making the mother the joint guardian of her children with her husband, with equal powers, rights, and duties in regard to them, it was held in People ex rel. De Laney v. Mt. St. Joseph's Academy (1921) 198 App. Div. 78, 189 N. Y. Supp. 775, reargument denied in (1921) 198 App. Div. 280, 190 N. Y. Supp. 289, affirmed without opinion in (1922) 234 N. Y. 565, 138 N. E. 448, that a father could not, in his lifetime, contract away the custody of his

children to another without his wife's consent; and the husband having, during the temporary absence from home of the wife, without her consent, placed three of their small children in a school a number of miles distant from their home, which practically deprived the mother of their custody, the court, in a contest which was in reality between the husband and the wife, directed the return of the children to the joint custody of the wife and the husband, upon the ground that it was for the welfare of the children.

And in Thompson v. Thompson (1875) 72 N. C. 32, in which it appears in the headnote, but not elsewhere in the report of the case, that the father gave his infant child into the custody of his father, the court awarded the custody of the child to its mother, although it considered the paternal grandfather a more proper person under the circumstances to have its custody, upon the ground that the statute expressly required the custody of the child to be given either to its father or its mother.

And in Zink v. Milner (1913) 39 Okla. 347, 135 Pac. 1, awarding the custody of a child to its father as against the claim of a third person under a contract with its deceased mother, which case is not within the scope of this annotation, the court cited the statute in reference to the relative rights of the father and mother, to the effect that the father is entitled to the custody of a legitimate and unmarried minor child, but cannot transfer such custody to any other person except the mother, without her written consent, unless she has deserted him or is living separate from him by agreement; and, if the father be Idead or be unable or refuses to take the custody, or has abandoned his family, the mother is entitled thereto.

The mother was awarded the custody of her little girl as against the paternal grandparent, to whom the father had given the child after securing a divorce upon the admitted adultery of the mother, in Vanover v. Johnson (1923) 201 Ky. 302, 256 S. W. 424, upon the ground that it was for the

welfare of the child to be with its mother.

And in Bustamento v. Analla (1857) 1 N. M. 255, the mother of an illegitimate child was held entitled to its custody as against a third person to whom its putative father had given it.

The contract by a father giving the custody of his minor child into the keeping of another has no effect beyond the period of his life, and, upon his death, the mother becomes entitled to the custody of the child, and this right of the surviving mother is inalienable by any contract by the father, which is revocable during the life of the father and is revoked by his death. De Jarnett v. Harper (1891) 45 Mo. App. 415; Smith v. Young (1909) 136 Mo. App. 65, 117 S. W. 628.

And it was held in Moore v. Christian (1879) 56 Miss. 408, 31 Am. Rep. 375, that, conceding the validity of a contract by the father giving the custody of his child to a third person, as to which the court expressed no opinion, such contract terminated at the father's death, and that the mother was thereafter entitled to the custody of the child, the court stating that the father could not, by contract with a stranger, bargain away the rights of the mother after his death. This decision was based in part upon the statute which expressly forbade the appointment of guardians of children. when either parent was alive, thus recognizing in the broadest manner the parental rights to their custody.

A contract by the father, giving the custody of his minor child to a third person, is of no effect after the death of the father, as against the mother, under a statute providing that, upon the death of the father, the mother is entitled to possession of the children. LANDRUM V. LANDRUM (reported herewith) ante, 217.

And that a father could not, by any agreement, relinquish the custody of the person of his infant child to a third person for any longer period than his own lifetime, so as to deprive the mother of the child of its

premises for the term named unless redeemed or otherwise discharged according to law. On June 1, 1918, Charles H. Wiltsie bid off certain

other premises for like term, paid the amount of his bid, and was given a like certificate of sale. Both of these certificates passed by proper assignments to the present plaintiff. Plaintiff, without complying with the provisions of the new charter, which took effect after both sales had been made and certificates issued, applied to defendants for the issuance of the deeds or leases. This request was refused because of the provisions of the new charter, and this proceeding for mandamus was instituted in the circuit court, where mandamus was issued as prayed. To review this judgment, we allowed a writ of certiorari.

Messrs. Walter Barlow and George A. Kelly, for plaintiffs in certiorari: The change made by the new city charter over the provisions of the old charter was only a change in the procedure necessary for the holder of a certificate of tax sale to follow, to entitle him to have a tax lease issued to him.

Clugston v. Rogers, 203 Mich. 339, 169 N. W. 9; Weller v. Wheelock, 155 Mich. 698, 118 N. W. 609.

The new charter was in force when plaintiff became the owner of the certificates of tax sales in question. He must be presumed to have known the provisions of the new city charter in that regard when he purchased the certificates, and he is bound to observe those provisions in his applications for tax leases on his certificates of tax sales.

Weller v. Wheelock, 155 Mich. 701, 118 N. W. 609; Curtis v. Whitney, 13 Wall. 68, 20 L. ed. 513; Vance v. Vance, 108 U. S. 514-522, 27 L. ed. 808-811, 2 Sup. Ct. Rep. 854.

Neither plaintiff nor his assignors took steps to entitle them to tax leases of the property covered by the certificates of tax sale in question until after the provisions of the new city charter took effect, and its provisions requiring six months' notice to be served on the owner of the property and the city comptroller to redeem it before tax leases thereof could be issued would therefore control.

38 A.L.R-15.

Hosier v. Higgins Twp. 45 Mich. 340, 7 N. W. 897; People ex rel. Owen v. Lincoln Twp. 41 Mich. 415, 49 N. W. 925; Avery v. Krakow Twp. 73 Mich. 622, 41 N. W. 818; Yeomans v. Ionia County, 174 Mich. 451, 140 N. W. 469; People ex rel. Mabley v. Judge of Superior Ct. 41 Mich. 32, 1 N. W. 985; Cook v. Election Comrs. 172 Mich. 437, 138 N. W. 1; Citizens' L. Ins. Co. V. Commissioner of Insurance, 128 Mich. 86, 87 N. W. 126.

Messrs. Harold M. Shapero and Samuel Shapero for defendant in certiorari.

Fellows, J., delivered the opinion of the court:

In the answer of defendants the defense of laches was not set up; neither the owner of the land nor the defendants have been harmed by the delay; and public policy requires a disposition of the case on the merits. Defendants contend that the provisions of the new charter apply to sales made under the old charter, and that if we should so hold no constitutional rights of plaintiff would be invaded. Plaintiff, on the other hand, insists that the sale to his assignors constituted a contract which would be impaired by the new legislation if held applicable to sales made previous to its adoption, and, for this reason and others, we should hold the legislation to be prospective, applicable only to sales made after its adoption.

We shall first consider the cases from this court relied on by defendants' counsel. The case most strongly relied on is Weller v. Wheelock, 155 Mich. 698, 118 N. W. 609. We think that case clearly distinguishable from the case before us. In that case the change in the statute permitted payment to the register in chancery, which was the provision under consideration; and Mr. Justice Montgomery, who wrote the prevailing opinion which settled the

law (Dolph v. Norton, 158 Mich. 417, 123 N. W. 13), expressly pointed out that the time of redemption was not extended by the statute, while here it is extended at least six months.

He also pointed out that "it is not necessary in this case to determine whether, in so far as the Amendment of 1903 attempted to confer a right upon another class, namely, purchasers under tax titles, it was ineffective, in that it impaired the obligation of contracts. That question is not involved in this case."

When, however, this latter question did come before the court in Curry v. Backus, 156 Mich. 342, 120 N. W. 796, it was held (we quote from the syllabus): "The tax law as amended by Act No. 142, Pub. Acts 1905, requiring the service of a notice to redeem from the sale of land for taxes upon the actual occupant of said land, does not apply to a sale and execution of the state's deed before the passage of the act; such construction imposes an additional burden upon the purchaser and impairs the obligation of the contract. Weller v. Wheelock, supra, distinguished."

In Clugston v. Rogers, 203 Mich. 339, 169 N. W. 9, the amendment had reference to the form of the notice, which this court held had to do only with the mode of procedure, and did not affect the substantial rights of the parties. In Church v. Smith, 121 Mich. 97, 79 N. W. 892, also relied upon, the purchaser did not pay the taxes for 1896 before the Act of 1897 went into effect, but paid them after the suit was brought; under the law he was required to pay these taxes to make his purchase effectual. It was held that when he brought the suit he had no title, and that his payment to perfect and acquire title, being made after the act was passed, made him subject to its provisions. But in Eldridge v. Richmond, 120 Mich. 586, 79 N. W. 807, where the purchaser had paid his money and filed his application and had acquired his rights before the law took effect, it

was held that it did not apply to him, even though the deed was not issued until some time after the act took effect. While not cited, State Sav. Bank v. Matthews, 123 Mich. 56, 81 N. W. 918, should also be considered. That case had under consideration Act 200, Public Acts 1899, which dealt with the foreclosure of mortgages in chancery, and which, without extending or shortening the time for redemption, permitted the sale after six months from the time the bill was filed. It was held that the statute affected the remedy, and not the substantial rights of the parties, and that it was applicable to pending proceedings. Cases from other courts relied upon by defendants will be considered later.

Section 1560, vol. 4, Cooley on Taxation, 4th ed., reads: "What law governs.-The statute in force at the time of the sale governs the rights of redemption. A subsequent act giving the right to redeem is ineffectual to confer the right."

And in the next section will be found the following: "Now the purchase at a tax sale is clearly a contract. It is made under the law as it then exists, and upon the terms prescribed by the law. No subsequent statute can import new terms into the contract, or add to those before expressed. If it could be changed in one particular, it could be in all; if subject to legislative control at all, it is wholly at the legislative mercy. Lengthening the time within which the land may be redeemed, as applicable to tax sales already made, is unconstitutional as impairing the obligation of a contract."

In $729, vol. 2, Blackwell on Tax Titles, 5th ed., it is said: "The law in being at the time of sale governs the right of redemption. The time can be neither lengthened nor shortened by subsequent legislation. Even though power be expressly reserved in the revenue laws to change the period, any statute attempting to alter the period as to any sale made under previously existing laws will be unconstitutional, as a sale is a