155 Iowa 430 | Iowa | 1912
In the year. 1886 one J. T. McColm and his wife were residents of the town of Gravity in Taylor county, Iowa. On June 5th of that year they adopted, or undertook to adopt, as their child the plaintiff herein, Nellie Anderson, who was then an infant. The instrument by which this adoption was sought to be effected was duly acknowledged and recorded and was in the following words:
Gravity, Iowa, June 5, 1886. Know all men by these presents, I, T. J. Davis, mayor of .Gravity, Taylor county, Iowa, having under my care, by the authority of . . . in me vested in me by the laws of the state of Iowa, an absconded child known to us only by the name of ‘Nellie7 which is in the town of Gravity, Taylor county, Iowa, and has been for several weeks. Therefore, I, T. J. Davis, mayor of the town of Gravity as grantor and J. T. McColm, and Lottie M. McColm, his wife, as grantees do make and enter into the following agreement: That I, T. J. Davis grant and give unto the said J. T. McColm and Lottie M. McColm, his wife, the aforesaid child, which is about to be the lawful and adopted child, w’ho shall hereafter be called and known by the name of Nellie M. McColm and shall be the lawful heir of the aforesaid J. T. McColm .and Lottie M. McColm. They shall have the same authority over, and be responsible for the said Nellie M. McColm to the same extent as though she was their lawful child by birth. T. J. Davis, Mayor of Gravity, Iowa, Grantor, J. T. McColm, Lottie M. McColm, Grantees.
The'defendant contests the demand for partition upon two grounds: First, that, the article or deed of adoption is void and of no effect, and plaintiff thereby acquired no right of inheritance from McColm; and, second, that after the death of McColm defendant not only elected to retain the homestead, but also waived her dower in his property other than the 'homestead and permitted said other property to be applied and exhausted in the payment of the debts of the deceased, and that she is therefore equitably entitled to have the homestead set- apart to her in fee. By an amendment to her petition plaintiff alleges that, if for any reason the deed of adoption be held insufficient under the statute, it still constitutes a valid contract under which she may claim and does claim a right to demand and receive the property of which McColm died seised or possessed, subject only to the statutory rights of the defendant as his surviving wife. She further alleges that the right to occupy the homestead was abandoned and lost by the defendant, thereby leaving the fee of the property subject to plaintiff’s rights under the contract of adoption free from any claim of homestead in the defendant. The trial court found in defendant’s favor and quieted the* title in her as absolute owner of the property.
The question. next arises whether, assuming the deed, to be insufficient to effect a statutory adoption, it may still be given force and effect as a contract by virtue of which plaintiff may assert a valid claim to an interest in -the estate of J. T. McColm, The law Upon the point thus-raised has been considered by this court in the comparatively recent case of Chehak v. Battles, 133 Iowa, 107. The opinion there written by Ladd, J., enters into an exhaustive review of the -authorities and reaches a conclusion which we think must govern the present appeal. In, that case, as in this, there was an attempt by a man and wife to enter into a statutory deed or article adopting an infant girl; but because of -an insufficient acknowledgment, and failure to place the same of record, it was held unenforceable as a statutory adoption. It appearing, however, that the parties had -acted upon faith of such instrument, the child had been taken into the home and family of her supposed foster parents and given just reason to believe that her status as a child and heir had been duly established and that she had carried out her part of the compact by rendering service, love, and companionship to them during her period of minority, it wa-s held that the
A contract so made, so long recognized and acted upon, and the consideration for. which has been duly rendered, should not be open to repudiation at the whim of the promisor without some available remedy to the promisee. The remedy applied in the Chehak case is at once practicable and, while not complete, effectuates sub
It is conceded that in the year 1906 defendant was remarried to one Robinson, a resident of Colorado. Immediately upon said marriage she went with her husband to that state, where she remained about four months, when she returned alone • and lived for a time with the family of the tenant to whom she had leased the property in Gravity. Later she went back to Colorado, remaining there until she procured a divorce in 1908, when s'he once more returned to Gravity and resumed her home on the property in question. Duning her absence some of her furniture was left in the house in care of the tenant occupying it. Do these facts constitute an abandonment? We think it must be so held. The mere fact that she went away from the home and was gone for a few months, or ■even for a longer time, -is not a decisive consideration, for the owner of a home may leave it and remain away for extended periods without forfeiting his privilege so long as the purpose served by his absence is of a temporary
On the other hand, his removal therefrom for any length of time, no matter how short, with a settled purpose to quit its occupancy permanently and take up his domicile elesewhere, will operate as an effective abandonment.
The “domicile” of a person has been defined as the place where “he has his true fixed permanent home and principal establishment to which whenever he is absent he has the intention of returning.” Story on Conflict of Laws, section 41. And while domicile does not necessarily imply the existence of a homestead, it is difficult to see how a person having a legal domicile in one state can possess a right of homestead in anothei’. It can not be presumed that a woman marries and takes upon herself the obligations and duties pertaining to that relation as a mere tentative or. experimental venture with a mental reservation of purpose to return to her former home and status should her husband prove on closer acquaintance to be less than her fancy has painted him. In legal theory at least, she goes with him in the spirit of surrender and loyalty, saying by her conduct, if not by her words: “Whither thou goest, I will go; where thou lodgest, I will lodge; they people shall be my people, and thy God my God.” If in these modern days that theory is not often exemplified in actual life, then so much the worse for actual life. The fact that the bride be a widow and
III. We do not understand on what principle the trial court confirmed and quieted the fee title in the defendant. As we read the pleadings, defendant asserted no claim to anything more that the right of occupancy for life, and in no ease could she be rightfully awarded the fee; but