*1 had, land such title to the involved as defendant judgment, got the they paid deposit. the right take the consideration and the back they say But judgment. plaintiffs of appears All that on the face the good “had title free from defects.” got warranty defendant no that justify getting what title defendant not true, is but that would Such judgment giving nothing it. We rule the paying had and giving involved, land and also had in the plaintiffs title defendant what they paid the deposit, right back the consideration them the to take 1267. irregularity under See. is they had no that the court point that notice make the
Plaintiffs prior ruling set 4th the was action on October when would take sustained; judgment the was and the motion to set aside aside 4th without notice was a say action on October the court’s hearing had on motion appears, As process. denial due time, at that shortly 4th, plaintiffs prior been had October words, and did. In other full the motion opportunity had resist Taylor al., 347 Mo. day court, et plaintiffs had their Cockrell 416, l. no contention that there was and there is 145 S. W. 4th before anything the court October that was not before on hearing had. on motion was August 23rd court on when setting 4th the order judgment October aside The order or judgment, and overruling to set aside the 10th the motion September af- judgment should be setting sustaining aside said motion Osdol, CC., Van concur. it Dalton and firmed and is so ordered. opinion C., foregoing
PER CURIAM:—The by Bradley, judges All the concur. opinion of the court. et al. No. Holland, Appellant, C. Robert Lee Thomas 39819. 198 S. W. Two, Division November
Rehearing Denied, December
Cyril B. Brown and John B. Baker appellant. respondents. Maughs W. C. and Hon C. Carter for BARRETT, appellant, Holland, C. The Robert Lee seeks himself Joseph Bailey to have declared the son Martin. If Bailey he is successful he inherits .$40,000 Martin’s estate to the respondents, brother, exclusion Martin’s sister and nieces and nephews.
In brief facts outline the are Martin were *3 in 1895 farm, part married and lived on a a of the Martin’s ancestral land, Williamsburg Callaway County. near in Lee Holland’s mother City was Mrs. Martin’s half sister. in Mrs. Holland died Kansas in husband, father, 1902 and her Holland, brought Lee’s Cal Lee to‘the farm Martin home after his at wife’s funeral Sedalia. Lee was years age. then a five He child or six of lived in Martin home 1902 marriage from until after his in 1916. And sometime after he married built him was Mr. Martin a house for on and the farm Lee family and his of ten children lived until there 1936. In 1936 Lee away and time City, though moved at fhe of the trial lived in Kansas of his children often in Martin some were home or in the house for in Lee after 1936. Mrs. Martin died 1937 and Lee built received $1,272.88 of a half nephew. one seventh her estate as Mr. Martiil in 1944 died and this suit followed in 1945.
Throughout years occasionally Lee’s father hint and wrote to to visit, possibly for except the Martins but one brief in never saw with in leaving Lee after him 1902 Martins From until 1916, while member household, Lee was a of the Martin the Mar- took, him, school, and, clothed him him short, tins sent to to church in son, him a father and would treated as natural mother treat a so much thought he The so that some was their son. Martins had no children. many did, Bailey” Mary” them, called and “Aunt Lee “Uncle they usually enough him “Lee.” As soon old and called as he was began work and doing apparently, he farm did most of the which, required farm, says, a for his wife he received on stock work partners and However, Mr. Martin seem to have been pay. no Lee After he do the farm raising marriage certain his continued to stock. Martin him. though lived the house Mr. About work he built may forty-seven given land, time have acres of Mr. Martin In did not made certain this record. but whether he is addition neighborhood blacksmithing eventually farming he did and to some doing and mechanical began driving a truck work. some 770 case, brief, theory
The of the as stated his agreement Bailey Martin and “upon Joseph an he claims that which Holland, plaintiff’s wife, Mary Martin, with M. his made Calohil years age” of approximately of father, plaintiff was a child when acts, ad (Remmers 509) and “the (Mo.), v. Remmers and wife with Joseph Martin his missions and conduct of him, taking him him, educating child, clothing to the reference visits, receiving reciprocal church, shopping trips on and and of companionship, affection, love and and the fruits benefits of his thirty years.” approximately Hollo period his over a four labor way W. Jones 246 S. appellant upon the outlined support
In his theories the relies largely and one or two evidence, from Lee’s relatives facts and the boy,” boyhood him “the neighbors, and that Mr. called friends son,” the fact “son,” or in 1911 said “take care of our or as once said appeared like own said that that “Lee was their son.” One witness boy going Mr. told him that he had the and “was make Martin once Lee said that Mr. Martin had remarked that was hisn.” Others we everything” or, substance, he that what have “to have when died belongs to Lee. agreement prove do not an
However, and circumstances these facts Cal Holland in or 1903 part the Martins with They may corroborating supporting cir adopt Lee. constitute facts, agreement, nor do not establish do cumstances but indubitably to the acts, and admissions lead as shown conduct Kay Niehaus, agreement in consensual sense. of an conclusion Aunt W. Lee’s wife said that died, presence, that “his mother her, in Mr. Martin’s once told *4 Bailey they him and wanted children and she wanted didn’t have they him raise him as their too, they decided would take and him and that was about fourteen Lee’s wife also testified when she own.” my going are Mary mother was half-sister. We Aunt said: “His we own, and he will inherit what have him our sometime to raise as Bailey or had never heard either Uncle got.” that she She testified they adopted but as Mamie Mary say had Lee she said that Aunt that Mary, deathbed, 1934, to Aunt lay in Mamie said on her Bailey adoption papers on Lee” and Aunt you take out “Mary, and just Mamie, going are to it as soon right, we do as I said, “All ’’ Fulton, we will going to take care of that. Bailey in notion' of get the evidence, credibility the is better said, of which But, this as we have 134 by judge, (Taylor (Mo.), v. Hamrick S. W. the trial determined necessarily may prove not an it show does (2d) 52) whatever else Kidd adopt Martins to Lee. v. St. Louis agreement in 1902 the 1039, (2d) 827, 831, 74 W. Ben Co., 1029, S. Trust 335 Mo. Union certainly (2d) 975. 1177, 93 S. W. Cronan, 338 Mo. It jamin v. Bailey in Martin with Cal Holland agreement prove an does not
771 Madden, v. 779, (2d) Niehaus 348 Mo. 155 l. S. W. l. c. 145. Compare: Davidson, Fisher v. 271 195, 1024; Mo. 195 S. W. Crad (Mo.), dock Jackson 223 v. S. W. 924. theory to presented brief,
As the second in pass question we of whether there must fact be some evidence agreement adopt, of an to subsequent addition to circumstances apparent performance agreement, of the oral attempt or some comply formal, recognized (Kay with some adoption method of Niehaus, v. 214, 629; Madden, Mo. l. c. 249 W. l. c. S. Niehaus v. l. 777, (2d) Mo. c. 155 W. 144) S. l. c. and assume that the status may child adopted be established cir fact from the mere taking own, voluntarily cumstances of a child into one’s home as his assuming parent, giving receiving the status of a and and affection companionship securing and child, or, the services of the as it is — denominated, adoption estoppel. Shelp sometimes an v. Mercantile Co., 682, 695, 15 Trust (2d) S. W. 825. In this connection the appellant stresses the mentioned facts circumstances we have requirements and contends that his case so fulfills all the of the doc finding trine that we should reverse and decree the trial court Bailey adopted may frankly to be Martin’s son. It be stated many fairly Holloway that in respects comparable his case is v. (Mo.), yet Jones 246 W. that en S. it does not follow he is titled to a decree. Bailey “adopt”
It true Martin need not have used word changed name from Holland to Martin to indicate or have Lee’s Taylor Coberly, 327 Mo. adopted he intended to or had Lee. v. (2d) 362, 376, 85 1055, 1061; Matthews, 337 Mo. Ahern (2d) auxiliary employed W. 383-384. it is with As other rules against cases, adoption
in these are no more conclusive than the referring alleged parents’ use of the name or their to the child as boy” boy” adop “their or even as “their is conclusive of an (2d) 573; tion. v. Austin 148 S. W. Furman v. St. Stillman Depending Co., 338 Mo. 92 S. W. Louis Union Trust they may important aids—even circumstances, however, become adoption fact there was an or decisive, determining whether in skillfully and their auxiliary employed rules are adopt. intent to The Benjamin Cronan, 338 Mo. 93 S. W. effect contrasted overwhelmingly case, theory, the But in the on this instant holding represent as and Martin’s Lee out persuasive fact of by convincing evidence. appear son is not made ing as his compelling 122. The force of 84, 102, 142 A. L. R. Annotation *5 a child as one’s son is holding representing out and circumstance of Drake, 43 W. 556. Here Drake v. S. illustrated duty of a consciousness of a sense of or the evidence reveals more property his or some part of Mr. Martin to leave Lee obligation relationship than intention past their rather part of it in view of Mr. Martin Bnt adopting representing or as his son. manner intention to some ill and the motive or did not believe wills duty place of evidence does not take recompense from a sense of Austin, supra. v. adoption. Stillman compelling the conclusion con weighed, tested and circumstances could be All the facts and favorable auxiliary even so a most light rules but trasted necessarily consistent appellant’s of the evidence is not construction Cronan, 93 W. adoption. Benjamin alone with v. Mo. l. c. S. have, any event, trying anew as we (2d) l. c. 979. In the case clear, cogent say evidence is so we cannot may confidently convincing that we assert doubt without 252 W. adopted fact Lee. Barnett v. Clark Benjamin Cronan, supra. We 628; Austin, supra; Stillman deference, that agree finding, give which we with the trial court’s Madden, Martin. Niehaus v. adopted Lee Holland was not Mr. . Mo. l. c. l. 145 GC., Bohling, Accordingly, judgment is affirmed. Westhues and concur. foregoing opinion Barrett, C.,
PER CURIAM:—The judges opinion as the of the court. All the concur. Kyger Kyger Koerper, Ap Fred H. H. and Mrs. A.
Fred v. John (2d)W. 39986. 197 S. pellant. No. Banc, en December Court