90 Iowa 621 | Iowa | 1894
This is an action in equity, brought by Mary E. McCollister, wherein she claims to be the owner of a large amount of real property, also certain
As many facts are admitted, we will first set out the same, so far as applicable to the plaintiff’s case: First. That on March 1,1862, one Thomas Hill entered into a deed of adoption formally adopting the plaintiff; that said deed was delivered, and was on January 28, 1867, duly recorded; and it is conceded that the same is in all respects regular, but it was not recorded until after the plaintiff, by marriage, had reached her majority, but was recorded during the lifetime of the adopting parent. Second. Said Thomas Hill died testate June 1, 1885, seised of the real estate in controversy. Third. By his will, his wife, Eliza D. Hill, if she survived him, was to become the absolute owner of all his property, both real and personal. Foivrth. Eliza D. TTill died intestate January 16, 1886, and in possession and enjoyment of all said estate of Thomas Hill. Fifth. Neither Thomas nor Eliza D. Hill had issue. Sixth. The parents of said Eliza D. Hill were Francis H. Doran and Maria Yan Aken, and they died, respectively, in 1840 and 1846. Seventh. The parents of said Eliza had issue other than said Eliza, one daughter, who died without issue about 1846, and one son, who disappeared, unmarried, about 1837, and has never since been heard from, and had no issue. Eighth. The defendants are a brother of Maria Yan Aken, who
The plaintiff claims the property by virtue of her adoption by Thomas Hill, and as his heir. The defendants claim the property as heirs of Eliza D. Hill, and deny that the estate passed to the heirs of said Thomas on the death of said Eliza. The defendants, in an answer to the plaintiff’s petition, aver that, after the death of Thomas and Eliza D. Hill, the plaintiff began an action in the district court of Johnson county, Iowa, contesting the will of said Thomas Hill, on the ground that he was of unsound mind, and that said will was procured through undue influence, and was void; that, after issue had been joined therein by these defendants, the parties to said litigation entered into an agreement whereby all the claims which the plaintiff had against the estate of either Thomas or Eliza D. Hill were settled by a payment to her of one thousand dollars which she still retains; and they claim she is now estopped from claiming any portion of the property in controversy. In a cross bill they also set up their claim to the property as heirs of Eliza D. Hill, and ask that title be quieted in them. The plaintiff, in a reply, admits the beginning of the action to set aside the will, but denies that she settled all claims she had against the estate of Thomas and Eliza D. Hill; says she agreed that a decree might be entered in said case on the payment to her of one thousand dollars, and that was all the agreement she made; that the alleged contract of settlement pleaded was without consideration, and is void, and, if made at all, was made under a mistake of fact, and belief that the defendants were entitled to the entire estate of Eliza D. Hill, whereas
The case of the intervener, McFadden: The intervener, McFadden, joins the plaintiff, and claims one half of the estate of Eliza D. Hill. She claims to have been legally adopted by Thomas Hill on July 1, 1882, by articles duly entered into and filed for record. When adopted, her name was Estella Welton, and she afterward lawfully took the name of McFadden, The facts admitted as to the plaintiff, and numbered from 2 to 9, inclusive, are also admitted in this case. Under these admitted facts, and by virtue of her adoption, she claims one half of the property in controversy. The defendants, as to her claim, say that as to whether the deed of adoption referred to was executed by the said Thomas Hill and Lizzie Welton, or as to whether the signatures of said parties thereto are genuine, or as to whether the same was ever delivered, the defendants have neither knowledge nor information sufficient to form a belief, and can not admit the same; deny that
I. It is said that the defendants have no such interest in the property in controversy as to entitle them to question the plaintiff’s right thereto. The plaintiff avers in her petition that the defendants claim to own the property; that they are in possession of it; that the defendant Welch, as the administrator of Eliza D. Hill, deceased, by some arrangement with the other defendants, is in possession and control of the estate, and enjoying the rents thereof. Her prayer is that the title to the real estate be confirmed in her, ‘ ‘or such portion thereof as the court should find belonging to her,” etc. Whatever this action may be called, it is a proceeding in equity, and its purpose is to ascertain and fix the extent of the plaintiff’s interest in this property. The burden is on the plaintiff to establish such facts as entitle her to a judgment and decree; otherwise, she can not recover; and in this view it is not necessary for us to give further attention to this branch of the case.
II. The material question in this case, as concerns the plaintiff, is, was she legally adopted by Thomas Hill. The only question raised touching the adoption is that the instrument of adoption was not filed for record until after the plaintiff had attained her majority; hence it is contended that the adoption wag never completed,
As we have said, the instrument of adoption in this ease was not filed for record until after the plaintiff had attained her majority, but it was filed during the lifetime of Thomas Hill. In Tyler v. Reynolds, 53 Iowa, 146, the instrument of adoption was not filed for record until after the death of the adopting parent, It
It will be observed that -our statute makes provision only for the adoption of minors. Code, section 2307. Now, by the express terms of the statute, adoption is not completed until the instrument of adoption is executed, acknowledged, and filed for record. Until all these things are done, there is no adoption. It matters not that some of the requisites of the law are complied with, if others are ignored. A compliance with all is essential to fix the status of the parties as parent and child by adoption. Now, if, as we have seen, no one but a minor can be adopted, and if adoption can only be accomplished by the performance of certain acts, it follows that these acts must be performed, and the relations of the parties, as parent and child by adoption, fixed and established, during the period in which the subject of the adoption is capable, under the law, of being adopted. In other words, all the acts necessary to effect an adoption must be done during the minority of the child sought to be placed in this new legal relation. It seems to us that any other holding would not only be a clear departure from the requirements of the statute, but would, in effect, make the adoption of a child a matter largely resting in the court, without statutory restraint. Thus, if we say that an adoption is complete where the article, though executed during the minority of the child, is not filed until afterward, why may we not properly hold that it would also be effectual if the article of adoption related to one who, at the time it was entered into, was an adult? Now, when the article in this case was filed, when one of the steps essential to an adoption was taken, the plaintiff was in law an adult. She was not then capable of being adopted, under the statute. For five years she had ceased to be a subject of adoption.
Counsel for the plaintiff cite Sewall v. Roberts, 115 Mass. 262, and Abney v. De Loach, 84 Ala. 393; 4 S. Rep. 757. In the first case the probate court, on the petition of Roberts and wife, entered a decree permitting them to adopt the child, as provided by statute. No guardian ad litem was appointed to represent the child. The court, without determining as to whether such a guardian was necessary in such cases, held that if one was necessary, still, a failure to appoint one would not render the adoption invalid, but it would be avoidable only at the option of the child. The case did not involve the question here presented. In the Alabama case the statute required a declaration of adoption to be executed, acknowledged, and filed and recorded before the relation of parent and child by adoption was created, and the child made capable of inheriting. The paper was required to be filed in the office of the judge of probate, and recorded on the min
INTERVENER MCEADDEN’S CASE.
III. The intervener, McFadden, was found by the referee to have been legally adopted about June 24, 1882, by Thomas Hill. This finding was approved by the district court, and counsel for the defendants insist that the finding is not warranted by the evidence. The petition of intervention sets out the instrument of adoption, with all proper averments as to its execution
James McFadden testified that he was the guardian of the intervener, and filed the petition in this case; that he did not have in his possession the deed of adoption made by Thomas Hill, adopting Estella McFadden, formerly Estella Welton; that he did not know where it was; that he saw it, he could not say what year; that it was about the first of July, with reference to the time it was made. This evidence was objected to as incompetent and immaterial, and because he would not be likely to have the instrument. He then testified that he did not know that it was recorded, but had instructed Charles Baker and Mr. Beaty to have it recorded. This evidence was objected to as incompetent and immaterial, and because not the best evidence. The intervener then offered in evidence the record of the deed of adoption and the index of the same. This was objected to for the same reasons, and also because no foundation had been laid for the introduction of secondary evidence, and it was not proven to be the record of the deed of adoption which was executed by
This was all the evidence introduced as laying the foundation for the introduction of the record of the instrument. We think it was insufficient for that purpose. . Our statute provides that ‘ The record of such instrument or duly authenticated copy thereof, is competent evidence whenever the party’s own oath or otherwise the original is shown to be lost, or not belonging to the party wishing to use the same, nor within his control.” Code, section 3660. Section 3659 provides: “Every instrument in writing affecting real estate which is acknowledged or proved, and certified as heretofore directed, may be read in evidence without further proof.” These two sections are found in the chapter on “Evidence” and under the subheading, “Instruments Affecting Real Property.” If it should be conceded, for argument’s sake, that an instrument of adoption is an instrument affecting real property, within the meaning of these sections, still the proper foundation for the introduction of the record was not laid. By these sections the record is made competent only when the original is shown to be lost, or not belonging to the party wishing to use it, or not within his control. Now, there was no showing that the instrument was lost. The witness simply testifies that he has not got it; has not seen it for years. He traced it into the. possession of Charles Baker and Mr. Beaty, whom he instructed to have it recorded. It may, perhaps, be said that he has shown that it was not under his control, as he testifies he did not have it, did not know where it was, and that, when he last saw it, it was in the hands of other parties. See McNichols v. Wilson, 42 Iowa, 392. But we do not think it was shown that it did not belong to the party wishing to use it, or that she did not have
Appellee contends that this record was original evidence; that it was primary; that no foundation need be laid for its admission; that it was admissible under section 3702 of the Code. That section reads: “Duly certified copies of all records and entries or papers belonging to any public office, or by authority of law filed to be kept therein, shall be evidence in all cases of equal credibility with the original record, or paper so filed.” Now, the record introduced was not
This case comes within the general rules requiring the production of the best evidence of which the fact to be established is susceptible. This rule is in force in this state, except in so far as it has been modified by statute.. Williams v. Heath, 22 Iowa, 521. The distinction between primary and secondary evidence is still recognized, but, by sections 3659 and 3660 of the Code, secondary evidence is made competent under certain circumstances. Speaking with reference to the steps necessary to be taken as preliminary to the introduction of secondary evidence, a learned author says: “But it seems that, in general, the party is expected to show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him.” 1 G-reenleaf on Evidence [15 Ed.], section 558. Measured by this standard, the intervener failed to lay the
There was some evidence as to admissions of Hill that he had adopted the intervener; but this phase of the question is not argued by counsel for the intervener, and, not being relied upon by them, we do not consider it. It not having been shown, by proper evidence that intervener was adopted by Thomas Hill, it follows that she can not recover. Under these circumstances, we are not called upon to consider the many other questions raised.
On plaintiff’s appeal, the case is affiemed; on defendant’s appeal, it is eeveesed.