Carlin v. Bacon

• Decision Date: 29 March 1929
• Docket Number: No. 27684.,27684.
• Citation: 16 S.W.2d 46
• Parties: THOMAS CARLIN, Sometimes Known As H.V. DEARMAND, v. EFFIE J. BACON, Administratrix of Estate of Lena Carlin, ET AL., Appellants.
• Court: Missouri Supreme Court

16 S.W.2d 46

THOMAS CARLIN, Sometimes Known As H.V. DEARMAND, v. EFFIE J. BACON, Administratrix of Estate of Lena Carlin, ET AL., Appellants.

No. 27684.

Supreme Court of Missouri, Division One.

March 29, 1929.

Appeal from Cole Circuit Court. — Hon. Henry J. Westhues, Judge.

AFFIRMED.

T.S. Mosby and Irwin & Bushman for appellants.

(1) The action is barred by both the special and the general Statutes of Limitations, because the demand was not presented within one year, and because the contract was not sued on until after five years from the date when the cause of action accrued (no disability of plaintiff being pleaded or proven), such defenses being invoked by demurrer, by answer, and by objection to the introduction of testimony. Secs. 182, 1317, R.S. 1919; Kneisley v. Leathe, 256 Mo. 346; Home Ins. Co. v. Wickham, 281 Mo. 300; Hinshaw v. Warren, 167 Mo. App. 365; Burrus v. Cook, 215 Mo. 496; McKinzie v. Hill, 51 Mo. 303; Montelius v. Sarpy, 11 Mo. 237; Nelson v. Haeberla, 26 Mo. App. 1; Ryan v. Boogher, 169 Mo. 673; Boyd v. Buchanan, 176 Mo. App. 56; Stark Bros. v. Gooding, 175 Mo. App. 353; Heffernan v. Howell, 90 Mo. 344; Garth v. Motter, 248 Mo. 477; Boyce v. Christy, 47 Mo. 71; Steinbruegge v. Ins. Co., 196 Mo. App. 194; Stone v. Cook, 179 Mo. 534; Landis v. Saxton, 105 Mo. 486; State ex rel. v. Matney, 79 Mo. 314; Henoch v. Chaney, 61 Mo. 129; Coudry v. Gilliam, 60 Mo. 86; State to use v. Bird, 22 Mo. 470; Maddox v. Duncan, 62 Mo. App. 474; Bambrick v. Bambrick, 157 Mo. 423; Beekman v. Richardson, 150 Mo. 430; McAllister v. Williams, 23 Mo. App. 286; McKee v. Allen, 204 Mo. 655; Cowan v. Mueller, 176 Mo. 192; Bauer v. Gray, 18 Mo. App. 173; Richardson v. Harrison, 36 Mo. 96; Weber v. Jantzen (Mo. App.), 180 S.W. 432; In re Hensley, 121 Mo. App. 695; State v. Browning, 102 Mo. App. 455; Waltemar v. Schnick, 102 Mo. App. 133; Evans v. King, 16 Mo. 525; Gray v. Givens, 26 Mo. 291; Bliss, Code Pl. (3 Ed.) sec. 205; 18 C.J., 953, sec. 10, and notes; 25 C.J. p. 1012, sec. 6, note 37, 1043; notes 95 and 96, 1065, note 2, and p. 1066, note 8. (2) Plaintiff's action is barred by the Statute of Frauds, because it clearly appears from the petition that the contract was not in writing and was not to be performed within a year, and the allegations of part performance are not sufficient to take the case out of the statute. Sec. 2169, R.S. 1919; 27 C.J. 372, sec. 452, and notes; 2 Story, Eq. Jur. (13 Ed.) secs. 742, 760, 761, 762; Wales v. Holden, 209 Mo. 552; Reigart v. Coal Co., 217 Mo. 142; Collins v. Harrel, 210 Mo. 279; Charpiot v. Siegerson, 25 Mo. 63; Brownlee v. Fenwick, 103 Mo. 420; Rogers v. Wolfe, 104 Mo. 1; Alexander v. Alexander, 150 Mo. 579; Warfield v. Hume, 61 Mo. App. 91; Russell v. Sharp, 192 Mo. 270; Hamilton v. Brewing Co., 125 Mo. App. 579; Wheeler v. Dake, 129 Mo. App. 547; Sharkey v. McDermott, 91 Mo. 647; Grantham v. Gossett, 182 Mo. 651; Arfstrum v. Baker, 214 S.W. 859; Kinney v. Murray, 170 Mo. 674; McElvaine v. McElvaine, 171 Mo. 244; Gipson v. Owens, 226 S.W. 856; McKee v. Higbee, 18 Mo. 296; Teats v. Flanders, 118 Mo. 660; Hersman v. Hersman, 253 Mo. 175. (3) Plaintiff, having waited ten years after attaining his majority before asserting his claim, with no explanation of his delay, relying upon parol evidence to establish his right, the rights of third parties having intervened, evidence having been lost by the death of the Carlins, such delay having by reason of loss of evidence worked injury to the rights of the heirs, plaintiff is guilty of gross laches and is presumed to have waived or abandoned whatever rights he may have had. Pomeroy v. Fullerton, 131 Mo. 581; Murphy v. DeFrance, 105 Mo. 52; In re Ferguson, 124 Mo. 574; Kelly v. Hurt, 74 Mo. 561; O'Fallon v. Kennedy, 45 Mo. 124; Heuer v. Ruthowski, 18 Mo. 216; Broaddus v. Ward, 8 Mo. 217; Sullivan v. Railroad, 94 U.S. 807; Wollensack v. Reiker, 115 U.S. 96; Bennett v. Terry, 299 S.W. 147; Joyce v. Growney, 154 Mo. 253; Mester v. Jones, 286 Mo. 56; Dexter v. Macdonald, 196 Mo. 373; 36 Cyc. 721, note 85; Id. 724, notes 87, 89; Id. 738, sec. 4, notes; 21 C.J. 217, sec. 217; Id. 435, sec. 469, notes; Id. 236.

Ira H. Lohman and Sam S. Haley for respondent.

(1) Respondent is not suing as a creditor of the estate, but is suing as an heir; he takes the estate subject to the debts; the heir can come in and make a claim for the estate even long after final settlement has been made. The estate is still in the course of administration, and Sec. 182, R.S. 1919, does not apply. Respondent's cause of action to recover the property could not accrue until April 21, 1924, the date of the death of Lena Carlin. So long as Lena Carlin was living respondent had no claim to her property. Respondent was not required to take any action until there came into existence some property to which he was entitled for which he could bring suit. He could not maintain this action as long as either Mr. or Mrs. Carlin lived. Dillmann v. Davison, 239 S.W. 505; Remmers v. Remmers, 239 S.W. 514; Fishback v. Prock, 279 S.W. 38; Kay v. Nichaus, 298 Mo. 206; Holloway v. Jones, 246 S.W. 591; Care v. Smiley, 239 S.W. 501; McCarty v. McCarty, 239 S.W. 850; Cradock v. Jackson, 223 S.W. 924; Fischer v. Davison, 271 Mo. 195; Martin v. Martin, 250 Mo. 539; Lynn v. Hockaday, 162 Mo. 111; Nowack v. Berger, 133 Mo. 24; Healey v. Simpson, 113 Mo. 340; Sharkey v. McDermott, 91 Mo. 647; Jenkins v. Gordon, 256 S.W. 136; Johnson v. Antry, 5 S.W. (2d) 405. (2) As to cases cited under paragraph two of appellant's brief relating to the Statute of Frauds, a careful reading of them shows that none of them applies to the Missouri rule as to the contract of adoption. None of the cases cited by appellant are adoption cases. Our answer to all of them is the case of Fishback v. Prock, 279 S.W. 41. See, also, Johnson v. Antry, 5 S.W. (2d) 409. (3) Under paragraph three of appellant's brief the point is raised that more than ten years has elapsed since the child arrived at majority. Respondent's answer to this is fully covered under paragraph one of respondent's brief, and particularly the case of Dillmann v. Davison, 239 S.W. 508. The cause of action to recover the property could not possibly accrue until after the death of Mrs. Carlin. It is further asserted, under paragraph three of appellant's brief, that plaintiff is guilty of gross laches, and that the delay has worked injury to the right of the heirs. We fail to see how there is any laches in this case or any injury to the heirs in any way. This court has repeatedly passed upon that very point. Johnson v. Antry, 5 S.W. (2d) 409; Dillmann v. Davison, 239 S.W. 508. (4) Appellants contend in their argument that the petition alleges that Carlin took plaintiff from the foundling asylum, agreeing to adopt him as their son; that such allegation does not state with whom the agreement was made, and, therefore, the proof does not support the petition. A motion was filed to make the petition more definite and certain and this was overruled, but no term bill of exceptions was ever filed at the term and the petition is good as against demurrer. The petition is sufficient to support a judgment. There was only one person that the Carlins could agree with and that was with the St. Ann's Foundling Asylum; the child was only three years of age when taken by the Carlins. It is further stated in the argument that there was no approval of the probate court, and that the child was not placed in the institution by an order of the court, appellant citing Beach v. Bryan, 155 Mo. App. 33, and Orey v. Moller, 142 Mo. App. 579. It will be noted, however, that the section of the statute construed in those cases was approved May 6, 1899. (See Laws 1899, p. 50.) The child was taken out of the institution on August 29, 1897, hence the agreement with the institution was made prior to the Act of 1899, and cases cited by appellant do not apply. Furthermore, the rights of the parents are not in question in this case; the parents have made no claim for the child, and this suit is not an issue between the parents and the Carlins, but is an issue between the child and Carlins; Carlins have deprived him of the right to be adopted by other parties. (5) About the only defense made by the defendants in this case was evidence to the effect that Carlin, after he had taken the boy and after the contract for adoption had been fully performed on the part of both parties, made statements that he had not adopted him. Many of these statements were admitted in evidence but were improperly admitted. This court will hear the matter de novo deferring largely to the judgment of the chancellor who tried the case. Parsifull v. Parsifull, 257 S.W. 117. The plaintiff made proper proof of all necessary facts for recovery. The decree is for the right party, based upon proper evidence of a contract to adopt and of circumstances which show conclusively an agreement to adopt. Direct testimony is not required. The adoption may be established by acts and conduct and inferences therefrom. Roberts v. Roberts, 223 Fed. 775; Johnson v. Antry, 5 S.W. (2d) 407; Remmers v. Remmers, 239 S.W. 514. (6) When the entire record is read and the proper evidence considered, disregarding the statements made by the Carlins that they did not adopt the child, this case stands without any defense. McCary v. McCary, 239 S.W. 850.

RAGLAND, J.

This is a suit in equity against the administratrix and collateral heirs of Lena Carlin, deceased: it seeks to have plaintiff declared an heir of the said Lena Carlin, through the operation of an alleged executed oral contract of adoption. The contract through which such status is alleged to have derived is set forth in the petition as follows:

"Plaintiff for cause of action says that on August 13, 1894, he was placed in St. Ann's Foundling Asylum, situate in the city of St. Louis, Missouri, where he remained as a ward of said institution until August 29, 1897; that on said 29th...