It is claimed by the petitioners in this proceeding that Augusta Carlson’s consent to the adoption of her child was obtained under circumstances amounting to duress and that at the time of the adoрtion a constructive fraud was practiced upon the court in that the court was not informed of a conversation had between Augusta Carlson and her mother to the effect that if Augusta should subsequently marry and have a good home that she might have the child if she desired her.
No claim is made that the order of adoption was in any respect irregular or that either the petitioners here or the respondents were not suitable persons to have the care and custody of the child. The sole question presented is whether or not the failure of the partiеs to inform the court at the time the order of adoption was made of the conversation between the petitioner, Augusta Carlson, and
If the failure of the parties to inform the court of the conversation between Aiigusta and her mother did not constitute a fraud upon the court which would authorize it to vacate the order of adoption, the question of whether or not the interests of thе child required that the order, be revoked does not arise. If the order entered in the adoption proceedings is valid and not vitiated by fraud, the question as to where the real interests of the child lie was finally and conclusively determined by that order. The ordеr of adoption is to all intents and purposes the solemn judgment of the court upon the issues presented by the petition and thе answer thereto if there be one. In a very carefully prepared decision the judge said:
*1 acquit all parties tO' the adоption proceeding of any actual deliberate intent to deceive the court. I realize that they doubtless thought it not necessary to inform the court of those details, the absence of which I have concluded vitiates the order of adoрtion. Nevertheless information of essential facts was withheld from the court, the knowledge of which might, and very likely would, have resulted in а denial of the petition. This constitutes a constructive fraud*412 on the court, and is sufficient ground for setting the order of adoption aside. In my judgment, the best interests of the child require that it be set aside.”
It is not claimed that the statement made to Augusta by her mother amounted to a fraud upon Augusta, but it is said that the mere fact that the parties to the adoption proceeding failed to disclose to the court the fact that the conversation referred to was had by Augusta and her mother аmounts to a fraud upon the court. We are unable to see from the circumstances in this case the slightest evidence of аny fraud, actual or constructive, committed upon the court. The alleged promise of the mother to Augusta to return the child to the custody of Augusta under the circumstanсes stated might well have been an additional reason for making the order of adoption. It certainly would have afforded no ground for denying the application. The question of what constitutes a fraud upon the court which will justify the court in setting aside a judgment of the court is quite fully discussed in Phillips v. Chase,
In any event a fraud which will warrant the interference of a court of equity or a court exercising equity рowers must be extrinsic to the action and practiced either upon the court or upon the party, and not a fraud respecting the merits and creating the condition or conditions in the action passed upon by the court. Boring v. Ott,
If, as held by the trial court, thе conversation or understanding between Augusta and her mother, if known to the court, would have resulted in a denial of the petition for аdoption, it would not warrant the vacation of judgment by the court where the parties have acted in good faith. 1 Ruling Case Law, р. 624, § 35; Brown v. Brown,
It was said in Parsons v. Parsons,
“The proceedings to avoid the judgment of adoption are clearly of an equitable nature, аnd after the lapse of many years, during which time the status of the subject of adoption has been recognized as legally fixed by thе judgment of the county court, by all parties to the proceedings, one of those parties on whose motion the judgment was rendered is in no position to appeal to the equity powers of the court to declare it void. The plainest princiрles of' estoppel apply to the situation. Appellant petitioned for the judgment. It was entered on her motion. The рerson most interested, the child, was a ward of the court, and its status for life was entirely and irrevocably changed by the result of the рroceedings if they were valid. Their validity was recognized by the appellant [the adoptive mother] till she became pеcuniarily interested in changing her position. Clearly, she cannot be aided by a court of equity to do that to the injury of the person she was instrumental in locating in her family as her adopted son.”
While the interest of the petitioner, Augusta, in having the order of adoption set aside is not pecuniary, we do not see that that fact in any way alters the situation. The adoptive parents have rights under, the judgment which should not be disturbed except upon sufficient legal grounds. It would be trifling with the solemn determination of the court to permit its decrees to be vacated and set aside because one of the parties thereto, by reason of a change in
By the Court. — The order setting aside the order of adoption is reversed, with directions to the county court to dismiss the petition upon the merits.