Beach v. Bryan

REYNOLDS, P. J.

(after stating.the facts). — It is proper to say at the outset that we have very grave doubt whether this suit can be maintained at all.

Courts of equity deal with property rights alone, are concerned only with questions which affect property and exercise no jurisdiction in matters of wrong to the person. [Bispham’s Principles of Equity (6 Ed.), top page 57.] They are concerned only with questions of property and the maintenance of civil rights. Injury to property, whether actual or prospective, is the foundation on which their jurisdiction rests. [Kerr on Injunctions (2 Ed.), sec. 1; In re Sawyer, 124 U. S. 200, l. c. 210; Brewer v. Carey, 148 Mo. App. 193, 127 S. W. 685, l. c. 688.] The only suggestion of a property right found in the amended petition, is the averment that the plaintiffs are entitled to the services and earnings of the child until he shall have attained his majority under the law. The other averments go to the loss of the companionship and affections of the boy during his minority and averments of the expenditure of money in caring for and maintaining him. Beyond question, if money has been expended on the faith of the alleged promise of the defendant, passing over this expenditure as part performance, whatever amount so expended may be recovered back in an action at law, subject to any offset the defendant may have for payments by her on any of these accounts. Possibly, damages may be recoverable for the loss of the services. But if we are to look at this petition as one seeking to enforce the performance of a contract for personal services on the part of the boy, it is not maintainable. It is beyond question that specific performance of a contract for personal services will not be decreed by a court of equity. [Fry on Specific Performance (3 Am. Ed.), sec. 110; Arthur v. Oakes, 11 Circt. Ct. of App. 209, l. c. 217, and cases there cited.]

Somewhat analogous to the law of adoption is that concerning apprentices. At common law as well as by our statute, a legal apprenticeship can be created only by deed — at common law by deed of indenture — and with some exceptions, even under our statute, it can only be effected by deed of indenture. [2 Am. and Eng. Ency. (2 Ed.), Par. II, p. 489, and cases cited in notes 2 and 3; sec. 1686, R. S. Missouri, 1909; Lally v. Cantwell, 40 Mo. App. 44.] Looking into decisions nnder the law concerning apprentices, we have found none in which a court of' equity has ever been asked to decree specific performance of an agreement to bind to apprenticeship. Several cases are found in which damages have been awarded at law for breach of the contract; none Avhere equity has taken hold to enforce it.

The matter of. adoption of children is regulated in this state by statute. [See chap. 90, R. S. 1899, chap. 20, art. I, R. S. 1909.] It was unknown to the common law. It is “in derogation of the common law, and purely of statutory enactment, and like all other similar statutes must be strictly complied with.” [Sarazin v. Union Railroad Company et al., 158 Mo. 479, l. c. 485, 55 S. W. 92.] While recognized and regulated by the Roman Law, the latter modified by the law of Justinian, our statute not only did not follow either, but is distinguished from these in many important particulars. So also it differs radically from the Code Napoleon. [Reinders v. Koppelmann, 68 Mo. 482, l. c. 499; Hockaday v. Lynn, 200 Mo. 456, l. c. 461, 98 S. W. 585.]

The matter of adoption in this state has a two-fold aspect. First, the taking over of the child by those who propose to adopt it. Second, the relinquishment of the parental right to the child by the parent or guardian or other authority charged with the custody of the child. Both of these matters are now regulated by statute. In chapter 90, Revised Statutes 1899, the sections applicable to the case at bar, or which throw light on the discussion, are sections 5246, 5247, 5248, 5250 and 5251. The sections covering the same matter and as amended by the Act of June 4, 1909 (Session Acts, 1909, p. 134), are now in chapter 20, article I, Revised Statutes 1909, designated as sections 1671, 1672, 3 673,„ 1675, 3677 and 1678, the latter as well as section 1677 added by the Act of 1909 above cited. When this alleged right of action is said to have accrued and the case was instituted, tried and determined, our statutes of 1899 were of force. Section 5246, Revised Statutes 1899, provided that any person in the state, who should desire to adopt a child as his heir or devisee, might do so by deed, which deed should be executed and acknowledged by the person adopting such child and recorded in the county of the residence of the person executing the same, as in the case of conveyance of real estate. Section 5247 of the same statute provided that a married woman, by joining in the deed of adoption with her husband, should, with her husband, be capable of adopting any child; and section 5248 provided that from the time of filing the deed with the recorder, the child adopted should have the same right against the person or persons executing the same for support and maintenance and for proper and humane treatment as a child has by law against lawful parents, and such adopted child should have and enjoy, in all respects, all such rights and privileges as against the person executing the deed of adoption. It will be noticed that these provisions related solely to the act of the adopter. They required no assent of the parent or child or of any one else. To the contrary, section 5248 expressly provides that it “shall not extend to other parties, but is wholly confined to parties executing the deed of adoption.” Eferein lies one of the most marked distinctions between 'the Roman Law and that of Justinian, as referred to 'by Judge Napton in Reinders v. Koppelmann, supra. Summarizing that very briefly and referring* to the opinions of Judges Napton and Lamm in the Reinders and Hockaday cases, supra, for a full exposition of the Roman and Civil Laws and that of Justinian, under the' Roman Law, the ceremony of adoption was a very' solemn one and all parties, the adopter, the adopted and the natural parents, were required to be present., The sanction of the curiae was necessary to its validity. The •law of Justinian changed this, substituting the simple proceeding of executing, in the presence of a magistrate, 'a deed declaring the fact of adoption, all parties to the adoption, the person giving, the person given and the person receiving being personally present to give their consent. Under the Roman Law, the son lost the succession to his own father by being adopted. Justinian, however, provided that the son given in adoption to a stranger should stand in his natural position to his own father as before and that he merely gained by adoption the succession to his adopted father in case the latter died intestate. Under the Code Napoleon, adoption was prohibited before the adopted party attained majority, and the adopted retained all his rights in his own family. Under our statute, as remarked by Judge Napton in Reinders v. Koppelmann, supra, l. c. 500, and speaking of it as it was in force prior to 1909, so far as it provides for the status of the child adopted it, “is contained in a single section which simply declares the rights of the adopted to support and maintenance, and the same rights and privileges as a natural child has against the person executing the deed of adoption, which would of course include the'right to inherit from the adoptive father or mother. The statute is silent as to whether the child loses the right to inherit from thé natural parents and as to the capacity of transmitting property acquired either from the adoptive parent or from any other quarter.” After pointing out the difference in this respect between the Roman or Civil Law and the Code Napoleon and our law, Judge Napton says: “Such a provision commends itself to our sense of justice, but it is not in our statute.” In addition to these provisions of our statutes, as they stood prior to June 4, 1909, we have section 5250, Revised Statutes 1899, which provides that “whenever any minor child below the age of seven years, intrusted by its parents or either of them to the care and custody of any legally incorporated institution in this state for the care and custody of minor children, or to any individual who may conduct such an institution, shall have been abandoned by such parents for a period of two years, or whenever such institution shall have received therein for care and custody, a minor child of the age aforesaid, which thereafter shall have been abandoned by its parents for a period of two years,” such institution may, with the approval of the probate court of the county or city in which it is located, execute a deed of adoption with all the force and effect of a parent, to any proper person or persons in this state who shall desire to adopt such child and who shall join in the execution of such deed for that purpose, and when any such deed is acknowledged the child adopted shall be entitled to all the rights of lawful children against the adopting parent or parents, and such adopting parent or parents shall have and be entitled to all the rights of lawful parents against such adopted child or children to the exclusion of any rights of its lawful parents. Under this section there have been many instances in which the child, either relinquished or abandoned by the parents, has been committed by articles of adoption to strangers. There have also been cases in which, considering the welfare of the child, the parent having committed it to a charitable institution, has been held to the act. Where, however, the child has a surviving parent, unless it has been placed with the individual or institution by order of court, the assent of the parent to its surrender has invariably been a .prerequisite to the right of the institution to surrender the child to strangers for adoption. [See in re Doyle, 16 Mo. App. 159; Orey v. Moller, 142 Mo. App. 579, 121 S. W. 1102.] In both these cases the right of the parent to revoke the relinquishment was recognized. It has, however,been a common practice in this state for parents, without any express statutory authority, to surrender their children to the adopter. Whether such surrender and relinquishment of parental right was valid prior to the passage of the Act of 1909, has never been adjudicated in this state in connection with the matter of adoption. We did consider it in Brewer v. Carey, supra, a case involving the validity of ¿n ante-nuptial contract as to the religious training of any issue of the proposed marriage.

The county courts (sec. 5251, R, S. 1899, now sec. 1676) have also always had, and the probate court since 1909 (sec. 1678) now have the right, whenever it appeared that the father or mother of a minor child is habitually intemperate or inhuman or grossly immoral, to take the child from the custody of such parents and award the custody to some non-sectarian or incorporated institution, but we had no statute prior to 1909, save the very incomplete reference to the subject found in section 5248 of. the statutes of 1899, which in terms provided for this matter. The first act of our General Assembly recognizing the power of the parent to relinquish control over the child is the Act of June 4, 1909 (Session Acts, 1909,. p. 184), now section 1677, Revised Statutes 1909. That provides for an absolute surrender by the parent of all parental rights over the child when effected by deed. This Act of June 4, 1909, amended section 5246 (now 1671), of the statutes of 1899, by striking out the words “or devisee,” of which words Judge Napton, in the Beinders case, supra, said that they were meaningless, and'by other merely verbal changes, and added two new sections (now 1677 and 1678) to the chapter concerning the adopting of children. The concluding section of the Act of 1909, recites: “There being now no plain statutory provision for the adoption of children, and there being persons within this state anxious to adopt children, an emergency within the meaning of the Constitution exists; therefore, this act shall take effect and be in force from and after its passage.” As before noted, this present action was commenced prior to the Amendatory Act of June 4, 1909, so that this act has no controlling force in the case at bar. We refer to it merely by way of illustration. So much for the statutes.

We are cited to no case, and have found none after much search, in which an action such as this has been before the courts for determination. Without determining in this case, that an action of this kind is maintainable at all, it is entirely within the scope of the case and its decision to endeavor to' apply to the facts in it, principles recognized in cases dealing with the fact of adoption. While the novelty of an action is no conclusive argument against it —dissenting opinion of Judge Gray in Schuyler v. Curtis, 147 N. Y. 434, l. c. 452,—it does warrant us in exercising extreme caution before entering upon a new application of recognized rules of law or of equity, especially when asked to apply these rules, applicable to contracts relating to real estate or other property, to a case such as this, a case in which is invovled the dearest and most sacred of all relations, that of parent and child, of mother and son.

The case, In re Scarritt, 76 Mo. 565, referred to by the learned trial judge, was one where, on proceedings under the habeas corpus act, the custody of an infant daughter was remitted to the father, notwithstanding his written promise to the grandparents that he would leave her in their care until she attained a named age. Before that age was reached, the father repented of his agreement, and, on the grandparents, the parties to whom he had committed his daughter, refusing to turn back the custody of his daughter to him, our Supreme Court awarded the daughter to the father, although in the interval between the father’s surrender of her and his assertion of his parental rights over her, she had been in-the care of the grandparents, raised by them, treated by them as their'own, cared for by them in sickness, her wants provided for, the grandparents even, for her better comfort and health, erecting at great expense a new and costly residence, all this at much outlay on the part of the grandparents. We have referred to the Doyle, case, to that of Orey v. Moller and Brewer v. Carey. In each one of these cases parental right was asserted in the most unequivocal manner. In the Doyle case, however, it being very doubtful, under the facts in the case, whether the father was recalling or had recalled his act of placing his child in the care of the charitable institution, and it being very doubtful whether the father was in a condition to maintain and properly bring up his child, this court continued the child in the care of the institution, as against the claim of others, strangers in blood, asserting a right to her alleged to have been derived from the father. In the Orey case, while the mother, in the absence of the father and under Ms assumed abandonment of Ms wife and family, had renounced the child to a charitable institution which had subsequently entered into articles of adoption with other parties, these strangers in blood, the child was restored on the application of the father and mother, to parental control, although those strangers claimed, as here, to have expended large sums of 'money in the care, maintenance and clothing of the child and to have become greatly attached to it. In the Brewer case, notwithstanding the promise of the man about to marry, made to his proposed wife in the most solemn form possible, and as one of the inducements to entering upon the proposed marriage, that he would renounce to her the religious training of any child or children horn of the contemplated marriage, and that any children born of the marriage should be brought up in the religious faith of the mother, even after the death of the mother, the contract of the father was held to be void as against public policy. This latter case arose prior to 1909. Even the Act of 1909, however, could have no effect or bearing whatever on that case; the question there presented was not one arising under or involving the law of adoption. We have found no other cases in our state shedding light upon this particular phase of this case.

There are many decisions of our Supreme Court in which the question has arisen as to whether legal adoption has in fact been accomplished. The question, however, has arisen in all the cases to which our attention has been called or which we have found by our own research, over the right of one claiming to have been adopted to share in the estate of the adopter, or to compel recognition on the part of the adopter, as against his estate, of the rights of the party claiming adoption, the claim of adoption resting on matters in pais, where no formal-deed of adoption had been executed. That is the character of the cases most confidently relied on by the learned counsel for appellants, namely: Sutton v. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107; Healey v. Simpson, 113 Mo. 340, 20 S. W. 881; Teats v. Flanders, 118 Mo. 660, 24 S. W. 126; Nowack v. Berger, 133 Mo. 24, 34 S. W. 489; Lynn v. Hockaday, 162 Mo. 111-125, 61 S. W. 885; Grantham v. Gossett, 182 Mo. 651, 81 S. W. 895; Wales v. Holden, 209 Mo. 552, 108 S. W. 89.

Another case, that of Hockaday v. Lynn, supra, is interesting in its account of the history of the law of adoption, bringing the historical survey down to 1901, when the opinion was filed. Reading that in connection with Judge Napton-’s opinion in Reinders v. Koppelmann, supra, we have a very clear understanding of this very interesting subject. It is to be said of all of these cases that they were not only at the suit of the party claiming to have been adopted but in every one of them they looked to the assertion of the claim of that party to property rights. In Hockaday v. Lynn, supra, l. c. 464, Judge Lamm, after stating that adoption was unknown to the common law and in derogation of it, states that statutes, providing for adoption have always been more or less strictly construed as against the adopted child, the adopted child being the one contending for or asserting property rights by reason of the claimed adoption. “Strict construction, however,” says Judge Lamm, “is not extended to the act of adoption itself. This is liberally construed in favor of the child adopted.” In all of the cases where a right is asserted by the one claiming to have been adopted in the property or estate of the adopter, our Supreme Court has invariably held that the proof to sustain the fact of adoption and to enforce the rights thereby arising must be so overwhelming in its probative force as to leave no room for a reasonable doubt in order to take the case outside of the Statute of Frauds. This is distinctly announced in Wales v. Holden, supra, l. c. 558, and cases there cited. It is further said in this case of Wales v. Holden (l. c. 576), that even when the rights of the child claiming adoption are involved, and where it was claimed that in the absence of a written contract of adoption, performance in whole or in part by the one claiming to have been adopted, was relied upon; that the performance relied on must be of a character not only consistent with the reasonable presumption that what was done was done on the faith of such a contract of adoption but also that it should be unreasonable to presume that it was done on any other theory. While our law provided for the execution of a deed, duly acknowledged and recorded, as essential to adoption, our Supreme Court has held, in the above and in many other cases, that where the child, acting on the faith of the adoption, has acted the part of a child to the promised adopter, has lived with the adopter, conducted itself as a child, and done all this under a promise of adoption, that the child shall not be defeated of its share in the estate of the adopter by the failure of the adopter, either to execute proper papers of adoption, or to recognize the child as an adopted one in the dispostion of his property, solely because the adopter has failed to execute the deed prescribed by statute. That is, in brief, that equity lifts such a case out of the operation of the Statute of Frauds. When the strict rule of part performance is applied as against the child claiming adoption, and by virtue thereof, attempting to assert an interest in property, on what possible ground can it be claimed that it should be relaxed when it is attempted, under and by virtue of a claimed parol contract to that effect, to wrest the child from his mother, to deprive the child of that mother’s loving care and attention, rend asunder the ties that are universally recognized as the most tender and dearest of all and commit that child, practically for its whole future, certainly during the whole of its minority, to the care of strangers to its blood, and to those whose affections for it, at best, are the result, not of those springing from the parental relation, but are the outgrowth of habit and association? If the child can claim the right of adoption only on the clearest and most convincing proof of the fact of adoption, or is held, if relying on part performance upon his part, to the proof of such acts of part performance as are not only consistent with the reasonable presumption that what was done was done on the faith of a contract of adoption, but that it would be unreasonable to presume that it was done on any other theory, surely it is not unreasonable to require that one claiming as against the mother, the custody and care and upbringing of the son, and in that claim, denying the mother all the rights of a mother, even, as in this case, the right of visitation and association, should be held to be the clearest and most incontrovertible proof of the surrender. A court of law or of equity will not absolve the parent from her duty and the child from his filial obligation, unless the conduct of the parent is of such a character as to have forfeited all parental right, and the interests of the child, as well as the interests of the state, are best subserved by so doing, save only when the parent, unequivocally and unmistakably, has surrendered parental control in a manner authorized by law. When the law requires the consent of the parent to be evidenced in a particular way and form, that way and that form must be complied with.

Tested by the rules and principles above referred to, the evidence fails to show any enforceable contract on the part of the mother to part with her child. According to the undisputed testimony in the case, all that was discussed between the mother and Mrs. Beach and her daughter, when they approached the mother on the subject of the adoption of this child, was the care and attention to be given the child in case of its adoption by these appellants. While it is true that the answer of respondent admits that on that occasion she “did verbally agree that she would surrender all claim and control of the child as his mother to plaintiffs,” there is not the slightest intimation on the part of the mother that she intended to execute any paper by which she would relinquish her maternal care of, and give up her maternal rights to the child. To the contrary, when the person in charge of the hospital asked or suggested to the mother that deeds of adoption were necessary, she, the mother, declared that they were not necessary. It must be borne in mind that the contract counted on in the petition in this case is alleged to have been made on. the 30th of December, 1904. Nowhere in the amended petition upon which the case was tried, is there any suggestion whatever of any other or further contract than the one then made. Apart from the above admission in the answer, what the testimony shows on this point is that at that time the mother, respondent here, desired to have her child adopted by some party or parties who would agree to adopt it and that Mrs. Beach, so far as the testimony shows, without any consultation with her husband, and of her own motion, expressed her willingness to-take and adopt the child. She could do that even without the assent of the parent or the one adopted, even conceding that Mrs. Beach, a married-woman, could do so alone (section 1672, R. S. 1909), or that she was empowered to act for her husband in the matter of adoption — points we do not decide. When afterwards urged to sign papers of relinquishment of her child, the mother distinctly refused. She refused even at the price of being excluded from the home of the appellants and deprived of all access to her son. By her subsequent acts, as well as all through the correspondence that passed between the parties, it is clear that the mother had never afterwards brought herself to the point of consenting to the absolute relinquishment of her parental right in her child, although willing, in the interests of the child to commit his custody to another. So that it is beyond dispute that.the mother never, after December, 1904, even tacitly agreed to- execute any contract by which she was to forever bar herself from parental control of her son, and it is clear that on that date she not only did not specifically agree to execute papers but declared they were unnecessary.

On the part of these appellants, it is in evidence, by their own admissions, that the mother sent to them $150 for the purpose of providing clothing and paying for the support, the board of her infant son. She after-wards sent them $30 for her own board. These appellants received this money, retained it. As remarked by the learned trial judge, they cannot occupy the position of parents and at the same time charge for board, clothing and attendance upon the child. The two relations are absolutely inconsistent. The evidence further shows, beyond, all question, that whatever arrangement for adoption on either side may have been entered into between the parties in December, 1904, that arrangement was subsequently, in 1905, and down to the fall of 1906, when the final refusal of the mother was given, not only repudiated by the mother but her repudiation acquiesced in by these appellants. The appellants, after this repudiation or refusal, with knowledge of it, assented to it and arranged to send the child to the mother. That this arrangement was not carried out then or was postponed or even abandoned, is no proof of a new contract. In point of fact, there is no pretense of any contract looking to adoption on either side, made after December, 1904. True we have the statement of appellants, both by petition and testimony, that they were always ready and willing to adopt the child, provided the mother would first relinquish her right to the child. This is no averment or proof of assent by the mother.

Learned counsel for appellants refers us to the cases of Gupton v. Gupton, 47 Mo. 37; Fuchs v. Fuchs, 48 Mo. App. 18; West v. Bundy, 78 Mo. 407, and Anderson v. Shockley, 82 Mo. 250, in addition to those before mentioned, in support of the proposition that equity will enforce the specific execution of a contract of this kind. Gupton v. Gupton is not in point. It was a case where the parent, an old man, had, in consideration of promises of support and care, turned over his property to his child or children; the promise not being kept, he sued for a rescission of the contract. Moreover, it was a case seeking the enforcement of a right in property. The other cases cited relate to enforcement of specific execution of contracts for the conveyance of property. We do not think that the rules applied by courts of equity, when asked to enforce rights in property, cases wherein the power of a court of equity is invoked in aid of contracts relating to property, and it is asked to compel specific performance of a contract for its conveyance, are applicable or should be applied to a case such as the one before us.

We will add that as it appears that the learned trial judge awarded the custody of this child to the mother, we have a right to assume that she is a proper person to have that custody. In fact, no allegations to the contrary are in the amended petition in this case.

We repeat, that in deciding this case on the theory upon which it was tried, we decline to pass on the question of the right to maintain any such action. We have indicated with reasonable clearness what we think of that proposition, but, as it has not been argued by counsel in the case at bar, and does not appear to have been presented to the learned trial judge, it is not to be held as within this decision. We decide and determine this-case on the facts here present and on the law, as we understand it, applicable to those facts.

Our conclusion on these is, that the judgment of the circuit court is correct. It is affirmed.

Nortoni and Caulfield, JJ., concur.