The appellant makes six assignments of error which we will discuss seriatim.
*778“1. That bis Honor erred in signing tbe judgment set out in the record.” In plaintiff’s brief she takes the position that the court was without jurisdiction in this action to determine the custody of the children. We think this untenable. The plaintiff instituted this action under C. S., 1664, which provides that in actions for divorce, either absolute or from bed and board, the judge both before and afte'r final judgment may make orders respecting the care and custody of children. The court acquired jurisdiction of the children upon the institution of this action, and was not divested thereof by the consent judgment, and especially is this so since the very judgment itself provides that “either party to this action may ... by motion in the cause herein have the custody of said children determined at any time without prejudice on account of this judgment.”
“2. That his Honor erred in holding that the consent judgment entered into between the parties was a full settlement of any claim which the plaintiff may have against the defendant for maintenance for any child or children which might be awarded to the plaintiff temporarily or otherwise.” We are inclined to the opinion that his Honor’s construction of the contract between the parties, evidenced and sanctioned by the consent judgment, is a correct one, but since the custody of the children was not awarded to the plaintiff the question presented becomes immaterial.
“3. That his Honor erred in finding as a fact that Dr. Tyner is a capable, fit, and suitable person to have the custody, care, maintenance, and education of his minor' children.” While there is evidence to the contrary, there is an abundance of evidence to sustain the finding of fact of which the plaintiff in this assignment complains.
“4. That his Honor erred in failing to find as a fact that Mrs. Tyner is a fit, suitable and proper person to have the custody, care, and education of her minor children.” While there is much evidence tending to show that Mrs. Tyner was a proper person to have the custody and care of her children, there was evidence to the contrary, and his Honor, upon careful consideration of all the evidence, viewed with its local coloring, failed to find that she was such a person, and went only so far as to find: “That the plaintiff, Mrs. C. Y. Tyner, is also a woman of good character and reputation; that she is a fit, suitable and proper person for said children to know and associate with, and the court further finds as a fact that they be permitted to know and to associate with their mother.”
“5. That his Honor erred in finding that Mrs. Tyner is able to provide for and maintain said children during such times as they may visit her and be in her custody.” Since the plaintiff would not be required to provide for or maintain the children during such time as *779they may “visit” ber, and since tbe custody of tbe children bas not been awarded ber, tbe question raised by this assignment likewise becomes immaterial.
“6 Tbat bis Honor erred in finding tbat it is to tbe best interest of said two minor children tbat their custody and care and education be awarded to their father, Dr. Tyner.” There is much evidence to sustain this finding, and much to tbe contrary. Tbe conscientious judge beard it all, took it under advisement for many days and nights, interviewed privately tbe children themselves, and doubtless after much travail, made this finding, which was tbe crucial one in tbe case.
“Tbe findings of fact by tbe court, there being evidence on both sides, is binding and conclusive on appeal.” Shoof v. Frost, 127 N. C., 307; Daugherty v. Comrs., 183 N. C., 152; In re Hamilton, 182 N. C., 44.
Upon tbe findings of fact that tbe defendant was a proper person to have tbe custody of tbe children, and tbat it was to tbe best interest of tbe children tbat be have such custody, tbe court properly concluded and adjudged tbat tbe defendant was entitled to tbe custody of tbe two minor children; especially was this so in view of tbe failure of tbe court to find tbat tbe plaintiff was a proper party to have such custody, and of tbe general and common-law rule tbat tbe father bas tbe prior right of custody. ¥e are glad, however, tbat tbe court softened tbe rigor of its judgment by providing tbat tbe mother is to have tbe right to visit ber children and to have access to their place of abode, and to associate with them so long as she does not attempt to take them from tbe State beyond tbe jurisdiction of its courts.
In determining tbe custody of children, their welfare is tbe paramount consideration. Even parental love must yield to tbe claims of another, if, after due judicial investigation, it is found tbat tbe best interest of tbe children is subserved thereby.
Tbe law applicable to this case is clearly stated in tbe often cited case of Newsome v. Bunch, 144 N. C., 15, where Walicer, J., says: “Tbe father is, in tbe first instance, entitled to tbe custody of bis child. But this rule of tbe common law bas more recently been relaxed and it bas been said tbat where tbe custody of children is tbe subject of dispute between different claimants, tbe legal rights of parents and guardians will be respected by tbe courts as being founded in nature and wisdom, and essential to tbe virtue and happiness of society; still, tbe welfare of tbe infants themselves is tbe polar star by which tbe courts are to be guided to a right conclusion, and, therefore, tbey may, within certain limits, exercise a sound discretion for tbe benefit of tbe child, and in some cases will order it into tbe custody of a third person for good and sufficient reasons. In re Lewis, 88 N. C., 31; Hurd on Habeas *780 Corpus, 528 and 529; Tyler on Infancy, 276 and 277; Scbouler on Domestic Belations, sec. 428; 2 Kent’s Com., 205. But as a general rule, and at the common law, the father has the paramount right to the control and custody of his children, as against the world; this right springing necessarily from and being incident to the father’s duty to provide for their protection, maintenance and education. 21 A. & E. Ene., 1036; 1 Blackstone (Sharswood), 452, and note 10, where the authorities are collected. This right of the father continues to exist until the child is enfranchised by arriving at years of discretion, 'When the empire of the father gives place to the empire of reason.’ 1 Blk., 452.”
In Patrick v. Bryan, 202 N. C., 62, we find: “In Peck, Domestic Be-lations, 3d ed. (1930), chapter 18, p. 371, section 30, it is said: 'The father has at common law an unquestioned right of custody and control over his minor children as against the mother, and still more clearly as against any third person.’ ” This rule, though it may at times be a harsh one, has been mollified only when the best interest of the children required it.
One cannot read the record in this case without being impressed with the tragic problem that is presented, and the well-nigh insurmountable barriers to its satisfactory solution. When father and mother cannot agree who shall have the care and nurture of those who are bone of their bone and flesh of their flesh, a grave responsibility is cast upon the court when it is called upon to make the determination. It is apparent that the judgment in this case was made only after careful and painstaking investigation and examination, and if it calls for sacrifices by the plaintiff she must be reminded that the court was compelled to deal with the facts as it found them and that “its foundation is the law of the land, which, as well as the moral law, oftentimes requires such offerings to be made.” In re D'Anna, 117 N. C., 462. The judgment is
Affirmed.