Chehak v. Battles
| Decision Date | 18 January 1907 |
| Citation | 110 N.W. 330,133 Iowa 107 |
| Parties | MYRTLE CHEHAK, LINDA ANDERSON and BERTHA BATTLES v. DELAPHINE BATTLES and MINNIE MANN, Appellants |
| Court | Iowa Supreme Court |
Appeal from Jones District Court.--HON. WM. G. THOMPSON, Judge.
ACTION to quiet title to a forty-acre tract of land. The defendant in a cross-petition claimed an undivided one-fourth interest therein. To this plaintiffs filed a demurrer, which was sustained, and, as defendant elected to stand on the ruling the cross-petition was dismissed, and she appeals.
Reversed.
Vorhis & Haas, for appellants.
Rickel Crocker & Tourtellot, for appellees.
Mary J. Battles was seised of the land in controversy at the time of her death in 1890, and, as it was a homestead, her husband continued in possession until 1904, when he died. Mrs. Battles left her surviving three daughters, the plaintiffs, who inherit the property and are entitled to a decree giving title in them, unless the defendant has some interest therein by virtue of the following contract, to wit:
Know all men by these presents, that I, Mary Neugent, of the county of Humboldt, and State of Iowa in consideration of the natural love and affection I bear to Mrs. Mary J. Battles and Edward Battles, of same county and State, and also and for other divers good cause and considerations me the said Mary Neugent moving, have given and granted, and by these presents do give and grant unto the said Mary J. Battles & Edward Battles my infant daughter, not yet named. Said child is given to them for the purpose of adoption as their own child and for no other purpose; and such child shall be named as they shall seem fit and bear the name of Battles. And the said Mary J. Battles and Edward Battles hereby covenant that upon the execution of these presents that they and each of them accept the rights, duties and relations of a parent to this child and shall in all respects be that of a child born to themselves in the state of wedlock, and that the same shall include all the rights of inheritance by law.
In pres. of
Daniel Harvey.
I. A. Averill.
Mary her X mark. Neugent.
Mary J. Battles. Edward Battles, Jr.
This was acknowledged by Mrs. Neugent, but not by Mrs. Battles or her husband, nor was it recorded. Under the statutes then in force the instrument of adoption to be valid must have been acknowledged by all the parties thereto and duly recorded. See chapter 107, title 17, Code 1860; section 3250 et seq. Code; Long v. Hewitt, 44 Iowa 363; Gill v. Sullivan, 55 Iowa 341, 7 N.W. 586; Shearer v. Weaver, 56 Iowa 578, 9 N.W. 907; McCollister v. Yard, 90 Iowa 621, 57 N.W. 447; Bresser v. Saarman, 112 Iowa 720, 84 N.W. 920. See Fouts v. Pierce, 64 Iowa 71, 19 N.W. 854. Appellant concedes that such is the rule in this State, but contends that the decisions cited are not controlling, inasmuch as the cross-petitioner is not claiming an interest in the land by virtue of being adopted as the child of Mrs. Battles and her husband, but is asking for the specific enforcement of a written contract between her mother, Mrs. Neugent, and Mrs. Battles, by the terms of which the latter, in consideration of the surrender of the child by the former its mother, and permission to name the same, expressly covenanted and agreed that she accepted the rights, duties, and relations of a parent to this child, and that the same "shall acquire all the rights of inheritance by law."
Adoption was unknown to the common law, being repugnant to its principles and the institutions upon which it was founded. It was recognized by the civil law, however, even prior to the reign of Justinian, and has long been practiced in different countries of Europe, though generally with limitations of more or less importance. See Succession of Unforsake, 48 La. 546 (119 So. 602); Abney v. De Loach, 84 Ala. 393 (4 So. 757); Morrison v. State of Sessions, 70 Mich. 297 (38 N.W. 249, 14 Am. St. Rep. 500). Though a contract of adoption could not be sustained at common law, the courts of equity enforce such contracts, whether oral or in writing, with respect to property rights involved. See Van Tine v. Van Tine, 15 A. 249 (1 L. R. A. 155); Sharkey v. McDermott, 91 Mo. 647 (4 S.W. 107, 60 Am. Rep. 270); Kofka v. Rosicky, 41 Neb. 328 (59 N.W. 788, 25 L. R. A. 207, 43 Am. St. Rep. 685); Wright v. Wright, 99 Mich. 170 (58 N.W. 54, 23 L. R. A. 196); Sutton v. Hayden, 62 Mo. 101; Grantham v. Gossett, 182 Mo. 651, 670 (81 S.W. 895); Godine v. Kidd, 64 Hun 585, 19 N.Y.S. 335; Burns v. Smith, 21 Mont. 251 (53 P. 742, 69 Am. St. Rep. 653); Winne v. Winne, 166 N.Y. 263 (59 N.E. 832, 82 Am. St. Rep. 647); Quinn v. Quinn, 5 S.D. 328 (58 N.W. 808, 49 Am. St. Rep. 875). In Wright v. Wright, supra, the adoption papers had been drawn in conformity with existing statutes of Michigan regulating the procedure which were subsequently declared unconstitutional, and yet the court enforced the agreement drawn up in conformity therewith as a contract. But in Albring v. Ward, 137 Mich. 352 (100 N.W. 609), the same court held that declarations before a probate judge made for the purposes of adoption would not be enforced as a contract, and this was followed in Bowins v. English, 138 Mich. 178 (101 N.W. 204). The surrender of a child by its parent to another, who at the time agree to adopt the child as his own or to devise property to or to make him his heir, is generally held as a valid consideration; and, as it is made for the benefit of the child, he may maintain an action for specific performance. See the above cases and Daily v. Minnick, 117 Iowa 563, 91 N.W. 913. In Healey v. Simpson, 113 Mo. 340 (20 S.W. 881), the court in referring to a written contract, said:
Conceding the execution of the contract, and that the mother and the child complied with its terms on their part (which we must do on a demurrer to the evidence), did plaintiffs have a prima facia case, which called for evidence on the part of defendant? We answer that we think they did. The instrument of writing in question cannot operate as an adoption, as it did not come up to legal requirements, but it can operate as a contract for adoption, which may, upon a proper showing, be specifically enforced in equity [citing cases]. The surrender by the mother of all control of the child, and the services and companionship of the latter, constitute valid consideration for the promise of Brewster and his wife that she would "have and inherit from the estate of said parties . . . in same manner and to the same extent that a child born of their own would inherit." . . . The influences of a child of tender years in the home circle are too sacred and holy to be estimated in dollars and cents. And when the mother sent her child to dwell in another family, in a distant State, she yielded much of the affection and love, and Brewster by the same act gained the companionship of one who added no doubt to his enjoyment of life.
In speaking of the consideration in Godine v. Kidd, supra, the court said, after reciting the circumstances: We have discovered no case questioning the adequacy of consideration in an action like this. In Wallace v. Long, 105 Ind. 522 (5 N.E. 666, 55 Am. Rep. 222), it was held that a parol contract to dispose of an interest in land for services to be rendered in the future was contrary to the statutes of fraud, and in Wallace v. Rappleye, 103 Ill. 229, the child was illegitimate, and under peculiar circumstances it was held that surrendering it to its putative father was not a good consideration.
The obligations of such a contract as of others are mutual, and the peculiarities of it such as emphasize the right of him who has faithfully performed his part of it to that portion stipulated by the other party. It is impossible to estimate by any pecuniary standard the value to the parties receiving a child, nor is there ever any design of so measuring the service and solace bestowed. The nature of the contract necessarily precludes all thought of returning the consideration, and after the mother has yielded the possession of her child with all that this means, and it has lived until majority as a dutiful and loving son or daughter with those who have promised to cherish him or her as their own, and that he or she shall share their estate, it is beyond the power of the adoptive parents or the courts to place the mother or child in the situation in which they were before the agreement was entered into. There is no such thing in cases like this as placing the parties in statu quo, and the remedy must be by specifically enforcing the contract or the denial of rights which have been fully earned, and in good conscience and justice ought to be enforced. The statute of frauds cuts no figure in the case, for part of the consideration, the surrender of the child, was paid at the time the agreement was executed. Nor is the statute of frauds an obstacle to the enforcement of such contracts, notwithstanding (Wallace v. Long, supra) there has been full performance by the party demanding relief when this is sought.
Nor is such an agreement contrary to the statute relating to the execution of wills. It does not partake of the nature of the testamentary disposition of property. On the contrary, it is to be executed mainly during the life of the adoptive parents, with a portion of the compensation to be made at their death. Winne v....
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