Bland v. Buoy

• Decision Date: 18 September 1934
• Docket Number: 31553
• Citation: 74 S.W.2d 612,335 Mo. 967
• Parties: Russell Bland and Mable Bland Sexton v. Virginia Buoy, Administratrix of the Estate of Halleck Bland, and Walter Bland, Julia Bland Blaich, Claude Vance and Virginia Buoy, Appellants
• Court: Missouri Supreme Court

74 S.W.2d 612

335 Mo. 967

Russell Bland and Mable Bland Sexton v. Virginia Buoy, Administratrix of the Estate of Halleck Bland, and Walter Bland, Julia Bland Blaich, Claude Vance and Virginia Buoy, Appellants

No. 31553

Supreme Court of Missouri

September 18, 1934

Rehearing Overruled September 18, 1934.

Appeal from Randolph Circuit Court; Hon. A. W. Walker Judge; Opinion filed at May Term, 1934, July 17, 1934; motion for rehearing filed; motion overruled at September Term September 18, 1934.

Affirmed.

Don C. Carter for appellants.

(1) The main question or issue involved in this case is raised under the allegations in the petition, viz.: "The said Halleck Bland and his wife took both of the plaintiffs . . . from the Methodist Orphans' Home, and took them from the care and control of that home, and under the order of the Juvenile Court of that city, . . . promising said Methodist Orphans' Home that they would provide and care well for the plaintiffs, and adopt them as their children and leave them their property at their death." By reason of the eliminations heretofore mentioned, made by the court in its findings and decree, and by reason of the failure of the defendants to appeal therefrom, the issue now involves only Halleck Bland, and involves only the question of his alleged agreement to adopt plaintiffs. Sharkey v. McDermott, 91 Mo. 647; Davis v. Hendricks, 99 Mo. 478; Healey v. Simpson, 113 Mo. 340; Fosburgh v. Rogers, 114 Mo. 122; Teats v. Flanders, 118 Mo. 660; Norwack v. Berger, 133 Mo. 24; Steele v. Steele, 161 Mo. 566; Lynn v. Hockaday, 162 Mo. 111; Kinney v. Murry, 170 Mo. 674; McElvain v. McElvain, 171 Mo. 244; Asbury v. Hicklin, 181 Mo. 658; Grantham v. Gossett, 182 Mo. 651; Wales v. Holden, 209 Mo. 552; Martin v. Martin, 250 Mo. 539; Lindsley v. Patterson, 177 S.W. 826; Fisher v. Davidson, 271 Mo. 195; Signaigo v. Signaigo, 205 S.W. 23; Rauch v. Metz, 212 S.W. 357; Arfstrum v. Baker, 214 S.W. 859; Craddock v. Jackson, 223 S.W. 924; Gipson v. Owens, 286 Mo. 33; Torwegge v. O'Reilly, 292 Mo. 613; Kerr v. Smiley, 239 S.W. 501; Dillman v. Davidson, 239 S.W. 505; Remmers v. Remmers, 239 S.W. 848; Kay v. Niehaus, 298 Mo. 201; Holloway v. Jones, 246 S.W. 587; Pursifull v. Pursifull, 257 S.W. 117; Lamb v. Feehan, 276 S.W. 71; Johnson v. Antry, 5 S.W.2d 405; Fishback v. Prock, 311 Mo. 494; Carlin v. Bacon, 322 Mo. 435; Schelp v. Trust Co., 322 Mo. 682; Taylor v. Cobberly, 327 Mo. 940; Drake v. Drake, 328 Mo. 966; Sharkey v. McDermott, 16 Mo.App. 80; Westerman v. Schmidt, 80 Mo.App. 344; Thomas v. Maloney, 142 Mo.App. 192; Horton v. Troll, 183 Mo.App. 690; Baker v. Payne, 198 S.W. 75; Jenkins v. Gordon, 256 S.W. 136; Eldred v. Glenn, 52 S.W.2d 35. The petition in the case at bar declares specifically upon a contract or agreement to adopt, between the Blands and the Methodist Orphans' Home Association, as above set out. But we earnestly call the court's attention to the fact that there is not a single word in evidence in this case, to substantiate such charges. There is not a scintilla of evidence in the case to prove any one or any part of such allegations, and not a word from any witness that Halleck Bland or his wife at any time ever made any such statements or promises in the presence of either Russell or Mable Bland, or to either of them.

M. H. Pemberton and North T. Gentry for respondents.

(1) Counsel for appellants labors diligently in his brief in an endeavor to convince this court that the oral agreement to adopt plaintiffs was an illegal agreement and that the Methodist Orphans' home had no right or authority to enter into such an agreement. This is a defense that was not raised in the trial court, and of course it cannot be raised for the first time in this court. Howell v. Jackson County, 262 Mo. 416; McManus v. Park, 287 Mo. 123; Powell v. Railroad Co., 255 Mo. 454; Springfield v. Smith, 19 S.W.2d 9. This rule holds good in suits for specific performance of oral contracts. Beheret v. Meyers, 240 Mo. 82; Y. M. C. A. v. Debach, 82 Mo. 481. (a) The theory upon which the case was tried will hold throughout the entire proceeding. Kincaid v. Britt, 29 S.W.2d 98; Snyder v. Car Co., 14 S.W.2d 607; Scanlon v. Kansas City, 28 S.W.2d 91; Fuess v. Kansas City, 191 Mo. 696; Ellis v. Ry. Co., 235 Mo. 676; Finkelburg on App. Prac., p. 107; Elliott on App. Procedure, sec. 489. (b) Even if such a defense had been properly raised in the trial court, the failure to assign it as error in the motion for a new trial (as in the instant case) prevents its consideration by the higher court. Shohoney v. Railroad Co., 231 Mo. 151. (2) Person assuming to be adopting parent is estopped from asserting the contrary. "Where one takes a child into his home as his own, thereby voluntarily assuming the status of parent, and by reason thereof obtains from the child the love, affection, companionship and services which ordinarily accrue to a parent, he is thereby estopped to assert that he did not adopt the child in the manner provided by law." Shelp v. Trust Co., 15 S.W.2d 824. And those claiming through him are also estopped from denying such adoption. Taylor v. Coberly, 38 S.W.2d 1062. This is true even though the alleged adopted child is the stepson of the alleged adopting parent and rendered such services as a stepson ordinarily would; the stepson of course living with his stepfather. Drake v. Drake, 43 S.W.2d 558; Eldred v. Glenn, 52 S.W.2d 35. (3) Adoption may be inferred from the acts and conduct of the parties. In speaking of an alleged adopting parent, who stated that he had adopted the child, our Supreme Court said, "His admissions, so thoroughly shown, justified the trial court to infer a previous contract to adopt." Kay v. Niehaus, 298 Mo. 214; Johnson v. Antry, 5 S.W.2d 407. In numerous cases, our state court and other courts have held that adoption can be inferred, and the circumstances in evidence are the very same circumstances (though not so numerous) as those in the instant case. Lynn v. Hockaday, supra; Signaigo v. Signaigo, 205 S.W. 31; Fisher v. Davidson, 271 Mo. 205; Lindsley v. Patterson, 177 S.W. 830; Rauch v. Metz, 212 S.W. 357; Kerr v. Smiley, 239 S.W. 504; Jenkins v. Gordon, 256 S.W. 139; Nowack v. Berger, 133 Mo. 37; Martin v. Martin, 250 Mo. 551; Buck v. Meyer, 195 Mo.App. 295; Baker v. Payne, 198 S.W. 75; Craddock v. Jackson, 223 S.W. 24; Remmers v. Remmers, 239 S.W. 509; Johnson v. Antry, 5 S.W.2d 407; Taylor v. Coberly, 38 S.W.2d 1058; Roberts v. Roberts, 223 F. 776; Van Tine v. Van Tine, 15 A. 249; Wright v. Wright, 99 Mich. 170; Petterson v. Bauer, 83 Neb. 415; Burns v. Smith, 21 Mont. 269; Kofka v. Rosicky, 41 Neb. 328; Godin v. Kidd, 19 N.Y.S. 336; Copeland v. Montfort, 153 Ga. 558; Eggstaff v. v. Phelps, 99 Okla. 54; Hickox v. Johnston, 113 Kan. 99. (4) It is not necessary, in the adoption of a child, for the child's parent or the institution in which the child may be kept to be bound. In a suit on an oral contract to adopt, the court said, "The law seems to be settled in this State that our statutory adoption is the act exclusively of the adopting parent, and does not require the consent of the child or its parent or guardian." Rauch v. Metz, 212 S.W. 361; Clarkson v. Hatton, 143 Mo. 54; Holloway v. Jones, 246 S.W. 590. (5) Where one party has performed his part, specific performance thereof will be decreed. On that subject, it has been said, "This court (Mo.) has heretofore applied to oral contracts of adoption the same rules that are applied to contracts affecting real estate; equity will not permit one party to such a contract to invoke the statute when to do so would work a fraud upon the other. It is a rule in equity that, when one party to a contract has been placed in such a situation by a total or partial performance, that it would be a fraud on him if the contract was not fully executed, then equity will interfere notwithstanding the statute." Carlin v. Baker, 16 S.W.2d 48; Martin v. Martin, supra; Holloway v. Jones, supra; Berg v. Moreau, 199 Mo. 433; Alexander v. Alexander, 150 Mo. 597; Van Tine v. Van Tine, 15 A. 249; Kofka v. Rosicky, 41 Neb. 328; Frye on Specific Performance, p. 283; Pomeroy on Contracts, sec. 104; Bispham on Equity, secs. 383-4; 1 Beach on Contracts, sec. 692. (6) The companionship of a child furnishes the consideration for adoption. The formation of artificial ties for the enjoyment and gratification of the party at whose instance this is done, is held to be such a consideration as courts will recognize as valuable, where the other party has in good faith acted on and carried out the agreement on his part. Healy v. Simpson, 113 Mo. 346; Lynn v. Hockaday, supra; Remmers v. Remmers, supra.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

Halleck Bland died, intestate, in Audrain County June 15, 1929, leaving no widow or lineal descendants surviving. His sister Mrs. Virginia Buoy applied for and letters of administration were issued to her as administratrix of the estate on June 18, 1929. The plaintiffs herein, Russell Bland and his sister (Mrs. Mable Bland Sexton) commenced this suit in equity in the Circuit Court of Audrain County, September 27, 1929. Plaintiffs claim to be the adopted children of the deceased Halleck Bland and as such his only heirs at law. The defendants are the administratrix and all the collateral heirs; defendant Walter Bland being a brother, defendants, Julia Bland Blaich and Virginia Buoy being sisters and defendant Claude Vance (a son and the only heir at law of Mrs. Alice Vance, a sister) being a nephew, of the deceased Halleck Bland. The cause went on a change of venue to the Circuit Court of Randolph County. The judgment and decree of the trial chancellor was for plaintiffs and defendants have appealed.

At the time (1912) that the...