Nelson v. Nelson

11b. Justice Baker

delivered the opinion of the court.

If for the purposes of this case we assume that the order of adoption made by the County Court is to be regarded as a consent v order, made upon the consent of appellants and appellee, and that it may be set aside by a court of equity upon any ground which would invalidate an agreement between appellants and appellee, we should still be compelled to hold that the Circuit Court was not authorized in this case to set aside the order of adoption made by the County Court.

To authorize a court of equity to grant relief upon the ground of mistake it must, inter alia, be shoAvn, that the mistake be one concerning an existing fact and not a mistake as to something to happen or be done in the future, and the mistake must be as to an intrinsic fact essential to and involved in the contract or transaction as to which relief is sought, and not as to an extrinsic fact which might have influenced the action of the party seeking such relief if he had known it. The mistake of appellee," under the influence of which she gave her consent to the adoption of her child by appellants, was not a mistake as to an existing fact, but as to something to happen in the future. She believed that she would not live long, and she lived a year after giving such consent before she filed her bill and was able to work in a shoe factory at the time of the hearing.

Her mistake was not as to the writing that she signed; nor as to the contents of the petition upon which such writing was indorsed; nor as to the use intended to be made of such petition and of her consent in writing which she indorsed upon it; nor as- to the nature of the order or decree that would be entered in the County Court upon the filing of such petition and consent. She intended to consent to the adoption of her child by the petitioners, and must be presumed to have known that upon the filing of such petition and consent an order or decree of adoption would be entered. It may be true that but for her mistaken belief that she would not live long, she would not have given such consent, but this, in our opinion, falls far short of constituting such a mistake as can authorize a court of chancery to vacate the order and decree of the County Court made and entered in a cause in which that court had jurisdiction over the parties and over the subject-matter.

No doubt a court of equity may, in the exercise of the parental power of the state, take a child away from its natural parents, or its parents by adoption, when the welfare of such child demands that it be done, but this is not a proceeding for that purpose, but a proceeding to set aside an order-of adoption, and the order awarding the custody of the child to appellee was but a consequence of and- dependent upon the decree vacating the order of adoption.

The decree of the Circuit Court will be reversed and the cause remanded with directions to dismiss the bill for want of equity.

Reversed and remanded with directions.