Beach v. Bryan

• Court: Court of Appeal of Missouri (US)
• Citation: 133 S.W. 635,155 Mo. App. 33
• Parties: BEACH et al. v. BRYAN.
• Decision Date: 14 January 1911

133 S.W. 635 155 Mo. A. 33 BEACH et al.
v.
BRYAN. St. Louis Court of Appeals. Missouri. January 14, 1911.

1. EQUITY (§ 16) — JURISDICTION—SUBJECT-MATTER.

Equity has no jurisdiction to redress wrongs to the person, but deals with property rights alone.

2. MONEY PAID (§ 1)—RIGHT OF ACTION.

Money expended by plaintiff in caring for defendant's child, in reliance upon defendant's oral agreement permitting plaintiff to adopt her child, could be recovered back in an action at law against defendant upon her subsequent refusal to perform her agreement.

3. SPECIFIC PERFORMANCE (§ 73)—CONTRACTS ENFORCEABLE—PERSONAL SERVICES.

Equity will not decree specific performance of a contract for personal services.

4. APPRENTICES (§ 8)— INDENTURE — NECESSITY.

At common law, as well as by the direct provisions of Rev. St. 1909, § 1686, a legal apprenticeship can only be created by deed of indenture.

5. ADOPTION (§ 1)—NATURE OF PROCEEDING.

The adoption of children is regulated by statute, being unknown to the common law.

6. ADOPTION (§ 7)—CONSENT OF PARENT.

Rev. St. 1899, § 5250 (Ann. St. 1906, p. 2729), provides that whenever any child under seven years of age intrusted to the custody of an institution for the care of minor children, or of any individual conducting such institution, shall have been abandoned by its parents for two years, the institution may with the approval of the probate court execute a deed of adoption, and the adopted child shall be entitled to all the rights of lawful children against the adopting parents, and such parents shall be entitled to all the rights of lawful parents against the child, to the exclusion of the rights of its lawful parents. Held that, unless a child having a surviving parent has been placed with an individual or institution by order of court, the parent's consent to its surrender to another upon adoption is essential.

7. ACTION (§ 1)—NOVEL REMEDIES.

While the novelty of an action is not conclusive against the right to maintain it, it justifies the exercise of extreme caution in permitting it when it involves the new application of recognized rules of law or equity.

8. FRAUDS, STATUTE OF (§ 158)—ADOPTIO —EVIDENCE—SUFFICIENCY.

One asserting rights in the property of another, under a claim of oral adoption as a child by such other, must prove such adoption beyond a reasonable doubt, in order to take the case out of the statute of frauds.

9. ADOPTION (§ 17)—ORAL AGREEMENT—EVIDENCE —SUFFICIENCY.

One claiming the custody of a child as against its natural parent, under an oral adoption agreement, must show such agreement by the clearest and most incontrovertible evidence.

10. ADOPTION (§ 17)—EVIDENCE—SUFFICIENCY OF EVIDENCE.

Evidence held to show that on a certain date defendant did not agree to execute adoption papers, and did not thereafter agree to surrender the child absolutely by way of adoption.

11. ADOPTION (§ 20)—EFFECT.

One cannot claim a child by way of adoption from its natural parents, and at the same time charge for caring for such child.

12. SPECIFIC PERFORMANCE (§ 73) — CONTRACTS ENFORCEABLE—ORAL CONTRACT OF ADOPTION.

The equitable rules applicable to the specific enforcement of rights in property created by contract are of doubtful application to cases of specific performance of an oral contract to permit the adoption of a child.

13. APPEAL AND ERROR (§ 934) — PRESUMPTIONS.

Where, in an action to compel specific performance of a contract for the adoption of a child, the trial court awarded the child's custody to its mother, the Supreme Court may assume, in absence of a contrary showing, that she is a proper person to have the custody of the child.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Oscar Beach and another against Margaret C. Bryan. From a judgment for defendant, plaintiffs appeal. Affirmed.

The amended petition in this case, in substance, avers that on the 30th of December, 1904, plaintiffs, at the special solicitation and procurement of defendant, entered into an agreement with her for the adoption of a certain infant son of defendant, the son then less than five weeks old, to the effect that defendant, who was the mother and then the sole natural guardian of the infant, relinquished at that time any and all claim which she had as the mother of the child to his services and labor and the fruits thereof and to his custody, society, and companionship, and agreed that plaintiffs should have the custody and absolute control of the son until he should arrive at his legal age; that the son should be given plaintiffs' name and should thereafter be known and called by the name of Robert Beach, and that plaintiffs should have the right to govern and control the child as though they were his natural parents; that at the same time and by the same agreement plaintiffs agreed and did adopt the child as their own,

[133 S.W. 636]

to be known thereafter as Robert Beach, and agreed to govern, educate, maintain, and in all respects treat the child as though he were their own natural offspring, and that he should have the right and should inherit from plaintiffs in the same manner and to the same extent as one of their own natural off-spring; that thereupon and at the same time, and pursuant to the agreement, defendant delivered and surrendered the child to plaintiffs; plaintiffs accepted the child and took it to their home and into their family, where they have ever since afforded the child an appropriate home, in which they have at all times supported, cared for, and maintained and governed him with the same affection, regard, and consideration that they have bestowed upon their own natural children, complying in every particular, as they will in the future, with their aforesaid agreement. Plaintiffs aver that they are willing and abundantly able to carry out and perform the agreement; that at the time of making it the child was of a tender age and sickly, requiring and receiving at the hands of plaintiffs the most diligent and faithful care, nursing, and attention; that plaintiffs have expended large sums of money in supporting the child and in administering to his necessities and wants generally, and that the strongest affection and attachment has sprung up between plaintiffs and the child; that plaintiffs are entitled "in equity and in the highest spirit of the law to a continuance of the aforesaid happy relation and condition between plaintiffs and their said adopted son," to a continuance of his society and companionship, and services and earnings, until he maintains his majority, "and that the status of said Robert Beach be firmly established as in equity, as the lawful adopted child of plaintiffs with the accompanying right in said Robert to inherit from plaintiffs as their lawful heir." They aver that they have been at all times and are now willing to join with defendant in the execution of an indenture deed of adoption of the child, in accordance with and in performance of the aforementioned agreement, and to that end have made frequent and repeated demands upon defendant to join them in the execution of such deed of adoption and have frequently and repeatedly tendered such deed to defendant for execution and have demanded that she execute said deed, but that defendant has wholly failed and refused to execute the same. Plaintiffs aver that they offer in open court to execute such deed of adoption upon their part, in full compliance and in accordance with the aforesaid agreement with the defendant. Averring that they have no adequate remedy at law, they pray the court "to decree that said Robert Beach is the lawful adopted son of plaintiffs, having the right to inherit from plaintiffs as such; that said defendant * * * be held to have relinquished to plaintiffs all and every claim and right and every claim and right which she had, as such mother, to the custody and control of said Robert and to his services and labor and the fruits thereof, and that plaintiffs be decreed to have the lawful custody and absolute control of said Robert until he shall attain his lawful age," and for general relief.

The answer of defendant to this petition, admitting that Robert is her son and that he is of tender years, to wit, four years of age, and that in December, 1904, he was committed to the care and custody of plaintiffs, and that some time afterwards the plaintiffs verbally agreed with defendant that they would adopt Robert as their true and lawful heir, as if their natural child, and that at that time she (defendant) did verbally agree that she would surrender all claim and control of the child as his mother to plaintiffs, and that afterwards plaintiffs forwarded to her a deed of adoption for her execution and delivery, and that she "then firmly refused to execute the same and so informed the plaintiffs, stating at the time that she would not execute any such deed," and that after this refusal plaintiffs, in writing, surrendered and relinquished all their right and claim to Robert, and all their right and claim to have him adopted as their son. She further avers that since plaintiffs have had the care and control of Robert, she (defendant) has contributed toward his support and maintenance in the furnishing of clothing and the payment of cash to plaintiffs, and that plaintiffs, in recognition of her right and claim to his companionship and love, permitted her to visit and have the company of the infant until the year 1908, wherefore defendant avers that there is no equity in plaintiffs' bill. A general denial by way of reply was filed to this.

It appears from the record, as well as in the statements and briefs of counsel, that about the time of the institution of this action, defendant instituted proceedings under the habeas corpus act to recover possession of the boy from plaintiffs, and that these proceedings by habeas corpus were had in the circuit court where the cause at bar was pending, and that the case under the...