5 S.D. 328 | S.D. | 1894
The complaint in this action is very lengthy, and we shall only attempt to give the substance, except as to two paragraphs, which we deem specially important. In October, 1868, the plaintiff, being a little over nine years of age, was adopted by Hollis S. Quinn, the husband of the defendant, by virtue of statutory proceedings, in the state of Illinois; the plaintiff's mother, then a widow, consenting thereto. •It is alleged in the complaint: That Quinn -was desirous of adopting the plaintiff as a child of his own, and making him one of his heirs at law, and bestowing upon him all the rights, privileges, and emoluments that he could enjoy and could be entitled to had he been born to the said Quinn as his own child; and “that, in pursuance of said intention so formed by said Hollis S. Quinn, at his special instance and request, complainant’s mother did, about the 26th day of October, 1868, enter into a contract with said Hollis S. Quinn, by virtue of which she did give her consent to the adoption of your complainant by said Hollis S. Quinn, on the express terms and conditions that your complainant was to live with the said Hollis S. Quinn until he was twenty-one years of age, and was to work for and serve said Hollis faithfully, be kind and obedient to said Hollis, and in consideration thereof the said Hollis Quinn was to board, clothe, and send your petitioner to school at least three months out of each and every year, and when your complainant arrived at the age of twenty one years was to give him a good span of horses, harness, and wagon, and was to give him enough farming machinery to enable complainant to start farming for himself; and also to make' com
The principal ground relied on by appellant for a reversal of the order of the court below is that by the complaint it affirmatively appears that the agreement alleged to have been made by said Quinn with the mother of the plaintiff at the time of his adoption was not in writing, and was therefore invalid.
The plaintiff does not seek to establish his right to inherit the estate of said Quinn, or his portion thereof, by a parol contract, but to show that Quinn had agreed-not to deprive him of his rights as heir under the order of the court; not that Quinn should convey or will property to him, but that he would not deprive the plaintiff of his right as heir under the legal proceedings. The contract, therefore set out in plaintiff’s com - plaint, is not one relating to the sale of land, or of an interest therein, in the sense that such a contract is used in the statute. The order of the court makes all the provision for such a transfer necessary, by conferring upon the plaintiff the right to inherit as a child of Quinn, and making him the heir to said Quinn. The parol contract set out in the complaint is that, in consideration of the faithful services of the plaintiff for said Quinn until he should attain the age of 21 years, he should receive certain personal property, and should retain his legal rights as heir at law of said Quinn. The contract removes the legal presumption that the plaintiff’s services were to be gratuitous, which would ordinarily arise in the case of services by a child, and establishes the fact that the order of the court was made upon a valid consideration, and that the plaintiff’s rights as heir of the estate of Quinn were of such a nature that he cannot be-deprived of those rights by any fraudulent proceedings of said Quinn or of the defendant. The.contract upon which the legal proceedings were based having been complied with on the part of the plaintiff, a court of equity will protect him against'any fraudulent conveyance of the property, or any conveyance without consideration or will, and set aside, cancel, and annul such conveyances, transfers, or will, in whatever form they may be made, so far as they effect his rights as heir to such property.