155 Mo. App. 33 | Mo. Ct. App. | 1911
(after stating.the facts). — It is proper to say at the outset that we have very grave doubt whether this suit can be maintained at all.
Courts of equity deal with property rights alone, are concerned only with questions which affect property and exercise no jurisdiction in matters of wrong to the person. [Bispham’s Principles of Equity (6 Ed.), top page 57.] They are concerned only with questions of property and the maintenance of civil rights. Injury to property, whether actual or prospective, is the foundation on which their jurisdiction rests. [Kerr on Injunctions (2 Ed.), sec. 1; In re Sawyer, 124 U. S. 200, l. c. 210; Brewer v. Carey, 148 Mo. App. 193, 127 S. W. 685, l. c. 688.] The only suggestion of a property right found in the amended petition, is the averment that the plaintiffs are entitled to the services and earn
Somewhat analogous to the law of adoption is that concerning apprentices. At common law as well as by our statute, a legal apprenticeship can be created only by deed — at common law by deed of indenture — and with some exceptions, even under our statute, it can only be effected by deed of indenture. [2 Am. and Eng. Ency. (2 Ed.), Par. II, p. 489, and cases cited in notes 2 and 3; sec. 1686, R. S. Missouri, 1909; Lally v. Cantwell, 40 Mo. App. 44.] Looking into decisions nnder the law concerning apprentices, we have found none in which a court of' equity has ever been asked to decree specific performance of an agreement to bind to apprenticeship. Several cases are found in which damages have been awarded at law for breach of the contract; none Avhere equity has taken hold to enforce it.
The matter of. adoption of children is regulated in this state by statute. [See chap. 90, R. S. 1899, chap. 20, art. I, R. S. 1909.] It was unknown to the com
The matter of adoption in this state has a two-fold aspect. First, the taking over of the child by those who propose to adopt it. Second, the relinquishment of the parental right to the child by the parent or guardian or other authority charged with the custody of the child. Both of these matters are now regulated by statute. In chapter 90, Revised Statutes 1899, the sections applicable to the case at bar, or which throw light on the discussion, are sections 5246, 5247, 5248, 5250 and 5251. The sections covering the same matter and as amended by the Act of June 4, 1909 (Session Acts, 1909, p. 134), are now in chapter 20, article I, Revised Statutes 1909, designated as sections 1671, 1672, 3 673,„ 1675, 3677 and 1678, the latter as well as section 1677 added by the Act of 1909 above cited. When this alleged right of action is said to have accrued and the case was instituted, tried and determined, our statutes of 1899 were of force. Section 5246, Revised Statutes 1899, provided that any person in the state, who should desire to adopt a child as his heir or devisee, might do so by deed, which deed should be executed and acknowledged by the person adopting such child and recorded in the county of the residence of the person executing the same, as in the case of conveyance of real estate. Section 5247 of the same statute provided that a married woman, by joining in the deed of adoption with her husband, should, with her husband, be capable of adopt
The county courts (sec. 5251, R, S. 1899, now sec. 1676) have also always had, and the probate court since 1909 (sec. 1678) now have the right, whenever it appeared that the father or mother of a minor child is habitually intemperate or inhuman or grossly immoral, to take the child from the custody of such parents and award the custody to some non-sectarian or incorporated
We are cited to no case, and have found none after much search, in which an action such as this has been before the courts for determination. Without determining in this case, that an action of this kind is maintainable at all, it is entirely within the scope of the case and its decision to endeavor to' apply to the facts in it, principles recognized in cases dealing with the fact of adoption. While the novelty of an action is no conclusive argument against it —dissenting opinion of Judge Gray in Schuyler v. Curtis, 147 N. Y. 434, l. c. 452,—it does warrant us in exercising extreme caution
The case, In re Scarritt, 76 Mo. 565, referred to by the learned trial judge, was one where, on proceedings under the habeas corpus act, the custody of an infant daughter was remitted to the father, notwithstanding his written promise to the grandparents that he would leave her in their care until she attained a named age. Before that age was reached, the father repented of his agreement, and, on the grandparents, the parties to whom he had committed his daughter, refusing to turn back the custody of his daughter to him, our Supreme Court awarded the daughter to the father, although in the interval between the father’s surrender of her and his assertion of his parental rights over her, she had been in-the care of the grandparents, raised by them, treated by them as their'own, cared for by them in sickness, her wants provided for, the grandparents even, for her better comfort and health, erecting at great expense a new and costly residence, all this at much outlay on the part of the grandparents. We have referred to the Doyle, case, to that of Orey v. Moller and Brewer v. Carey. In each one of these cases parental right was asserted in the most unequivocal manner. In the Doyle case, however, it being very doubtful, under the facts in the case, whether the father was recalling or had recalled his act of placing his child in the care of the charitable institution, and it being very doubtful whether the father was in a condition to maintain and properly bring up his child, this court continued the child in the care of the institution, as against the claim of others, strangers in blood, asserting a right to her alleged to have been derived from the father. In the Orey case, while the mother, in the absence of the fa
There are many decisions of our Supreme Court in which the question has arisen as to whether legal adoption has in fact been accomplished. The question, however, has arisen in all the cases to which our attention has been called or which we have found by our own research, over the right of one claiming to have been adopted to share in the estate of the adopter, or to compel recognition on the part of the adopter, as against his estate, of the rights of the party claiming adoption, the claim of adoption resting on matters in pais, where no formal-deed of adoption had been executed. That is the character of the cases most confidently relied on by the learned counsel for appellants, namely: Sutton
Another case, that of Hockaday v. Lynn, supra, is interesting in its account of the history of the law of adoption, bringing the historical survey down to 1901, when the opinion was filed. Reading that in connection with Judge Napton-’s opinion in Reinders v. Koppelmann, supra, we have a very clear understanding of this very interesting subject. It is to be said of all of these cases that they were not only at the suit of the party claiming to have been adopted but in every one of them they looked to the assertion of the claim of that party to property rights. In Hockaday v. Lynn, supra, l. c. 464, Judge Lamm, after stating that adoption was unknown to the common law and in derogation of it, states that statutes, providing for adoption have always been more or less strictly construed as against the adopted child, the adopted child being the one contending for or asserting property rights by reason of the claimed adoption. “Strict construction, however,” says Judge Lamm, “is not extended to the act of adoption itself. This is liberally construed in favor of the child adopted.” In all of the cases where a right is asserted by the one claiming to have been adopted in the property or estate of the adopter, our Supreme Court has invariably held that the proof to sustain the fact of adoption and to enforce the rights thereby arising must be so overwhelming in its probative force as to leave no room for a reasonable doubt in order to take the case outside of the Statute of Frauds. This is distinctly announced in Wales v. Holden, supra, l. c. 558, and cases there cited. It is further said in this case of Wales v. Holden (l. c. 576), that even when the rights of the child claiming
Tested by the rules and principles above referred to, the evidence fails to show any enforceable contract on the part of the mother to part with her child. According to the undisputed testimony in the case, all that was discussed between the mother and Mrs. Beach and her daughter, when they approached the mother on the subject of the adoption of this child, was the care and attention to be given the child in case of its adoption by these appellants. While it is true that the answer of respondent admits that on that occasion she “did verbally agree that she would surrender all claim and control of the child as his mother to plaintiffs,” there is not the slightest intimation on the part of the mother
On the part of these appellants, it is in evidence, by their own admissions, that the mother sent to them $150 for the purpose of providing clothing and paying for the support, the board of her infant son. She after-wards sent them $30 for her own board. These appellants received this money, retained it. As remarked by the learned trial judge, they cannot occupy the position of parents and at the same time charge for board, clothing and attendance upon the child. The two relations are absolutely inconsistent. The evidence further shows, beyond, all question, that whatever arrangement for adoption on either side may have been entered into between the parties in December, 1904, that arrangement was subsequently, in 1905, and down to the fall of 1906, when the final refusal of the mother was given, not only repudiated by the mother but her repudiation acquiesced in by these appellants. The appellants, after this repudiation or refusal, with knowledge of it, assented to it and arranged to send the child to the mother. That this arrangement was not carried out then or was postponed or even abandoned, is no proof of a new contract. In point of fact, there is no pretense of any contract looking to adoption on either side, made after December, 1904. True we have the statement of appellants, both by petition and testimony, that they were always ready and willing to adopt the child, provided the mother would first relinquish her right to the child. This is no averment or proof of assent by the mother.
Learned counsel for appellants refers us to the cases of Gupton v. Gupton, 47 Mo. 37; Fuchs v. Fuchs, 48 Mo. App. 18; West v. Bundy, 78 Mo. 407, and Anderson v. Shockley, 82 Mo. 250, in addition to those before mentioned, in support of the proposition that equity will enforce the specific execution of a contract of this kind. Gupton v. Gupton is not in point. It was a case where the parent, an old man, had, in consideration of
We will add that as it appears that the learned trial judge awarded the custody of this child to the mother, we have a right to assume that she is a proper person to have that custody. In fact, no allegations to the contrary are in the amended petition in this case.
We repeat, that in deciding this case on the theory upon which it was tried, we decline to pass on the question of the right to maintain any such action. We have indicated with reasonable clearness what we think of that proposition, but, as it has not been argued by counsel in the case at bar, and does not appear to have been presented to the learned trial judge, it is not to be held as within this decision. We decide and determine this-case on the facts here present and on the law, as we understand it, applicable to those facts.
Our conclusion on these is, that the judgment of the circuit court is correct. It is affirmed.