Hardy v. Mobley

• Citation: 183 La. 668,164 So. 621
• Decision Date: 04 November 1935
• Docket Number: 29046
• Court: Supreme Court of Louisiana
• Parties: HARDY et al. v. MOBLEY

164 So. 621

183 La. 668

HARDY et al. v. MOBLEY

No. 29046

Supreme Court of Louisiana

November 4, 1935

Rehearing Denied December 2, 1935

Appeal from First Judicial District Court, Parish of Caddo; T. F Bell, Judge.

Suit by David W. Hardy and others against Dr. J. W. Mobley. The suit was dismissed, and plaintiffs appeal.

Affirmed.

Jackson & Smith and Chas. L. Mayer, all of Shreveport, for appellants.

C. B Prothro, of Shreveport, for appellee.

ODOM, Justice. LAND, J., recused.

OPINION

ODOM, Justice.

Plaintiffs allege that Mrs. Mattie L. Mobley died intestate on November 21, 1918, leaving neither ascendants nor descendants; that they are her sole collateral heirs and have inherited and now own all the property of which she died possessed, including certain real estate in the city of Shreveport and a tract of land in Bossier parish; that Jesse W. Mobley, the defendant, is in actual possession of said property without any title thereto and without right to remain in possession thereof; and that he refuses to yield possession to them, the lawful owners.

They prayed for judgment in their favor and against the defendant recognizing and decreeing them to be the heirs of the deceased, Mrs. Mobley, and owners of the property; that they be sent into possession thereof and the said Jesse W. Mobley be ordered to render an accounting for rents and revenues.

The defendant admitted in answer that he was in possession of the property and set up the defense that he was the adopted son of the deceased, Mrs. Mobley, and her husband, William J. Mobley, having been duly and legally adopted by them in the latter part of the year 1873, and that by virtue of said adoption hehad inherited all the property owned by both Mr. and Mrs. Mobley at the time of their deaths, including the property described in plaintiff's petition, the deceased having no forced heirs.

The trial judge held that the defendant had been legally adopted by the deceased and that the property involved had been inherited by him. He rejected plaintiffs' demands and ordered their suit dismissed. This appeal followed.

The sole question involved is whether the defendant, Jesse Wood Mobley, was legally adopted by William J. Mobley and his wife, Mrs. Mattie L. Mobley. If he was, he inherited this property from them to the exclusion of plaintiffs, who are collateral heirs.

The record discloses that on December 19, 1873, Dr. William J. Mobley and his wife, Mrs. Mattie L. Mobley, presented a petition to D. Creswell, parish judge of Caddo parish, La., representing that they desired to adopt Jesse Wood (now Jesse W. Mobley, the defendant), "an orphan minor and aged about four years, residing in said parish and unrepresented by a tutor." They asked that a special tutor be appointed to represent said minor and prayed "that they be authorized to adopt said minor in accordance with the provisions of existing laws."

On the same day that the petition was presented to the judge he entered the following order: "It is ordered that C. S. Gunter be and he is hereby appointed special tutor to represent herein the minor Jesse Wood." The special tutor took the oath and filed answer as follows: "I consent that plaintiff be authorized to adopt said minor Jesse Wood, having full (fully) satisfied myself that he is a suitable person to take charge of and that he is above (able) to provide for said minor." Whereupon the parish judge entered the following order:

"By reason of the law and the evidence and consent of special tutor of minor Jesse Wood being in favor thereof, said minor having no other relatives present except a sister. It is ordered that William J. Mobley and his wife, Mattie Mobley, be and they are hereby authorized to adopt said minor in accordance with existing laws, and that said adoption be carried into effect and evidenced by a public act to be passed before F. A. Leonard, Notary Public, or before any notary public of Bossier Parish.

"Done and signed in chambers at Shreveport on this December 19, a. d. 1873.

"D. Creswell, Parish Judge."

Immediately following the signing of this judgment, Dr. W. J. Mobley and C. S. Gunter, appointed tutor ad hoc for the minor, entered into the following notarial act of adoption:

"State of Louisiana, Parish of Caddo,

"Personally appeared before me, F. A. Leonard, Notary Public in and for said parish, W. J. Mobley, who declared that whereas he and his wife, Mattie L. Mobley, have been authorized to adopt the minor Jesse Wood, he by these presents declares that he had adopted said minor, in conjunction with his wife, Mattie, in accordance with the provisions of existing laws.

"Also appeared C. S. Gunter, special tutor of said minor, Jesse Wood, who declared that he consents to said adoption of said minor by said W. J. Mobley and wife.

"Done and signed at Shreveport on this December 19, 1873, in the presence of undersigned competent witnesses.

"[S'g'd.] W. J. Mobley, M. D.

"[S'g'd.] C. S. Gunter, Tutor.

"Witnesses:

"[S'g'd.] A. H. Leonard

"[S'g'd.] F. H. Elmore

"[S'g'd.] F. A. Leonard, Notary Public."

It will be noted that while Dr. Mobley declared in the above notarial act that whereas he and his wife had been authorized to adopt the minor, JesseWood, and that he had adopted said minor in conjunction with his wife, the act of adoption is not signed by his wife. Just why Mrs. Mobley did not sign this notarial act of adoption with her husband does not appear. However, it is clear that she intended to adopt the minor along with her husband, because twelve days later she and her husband appeared before a notary public in Bossier parish, before whom she signed the following notarial act of adoption, being authorized thereto by her husband:

"State of Louisiana, Parish of Bossier,

"This day appeared before me, L. W. Bresher, recorder and ex officio notary public of Bossier Parish, William J. Mobley and his wife, Mattie Mobley, who declare that whereas they have been authorized to adopt the minor Jesse Wood and whereas C. S. Gunter, special tutor of said minor, has signed an act of adoption recorded in Caddo Parish, signed also by said William J. Mobley, and whereas it is necessary that said Mattie L. Mobley, authorized by her husband, should also sign an act of adoption.

"Therefore by these presents the parties announce that they have adopted said minor in accordance with the provisions of existing laws of Louisiana.

"Done and signed in Bellvue in said parish on this the 31st day of December, a. d. 1873, in the presence of the undersigned competent witnesses.

"[S'g'd.] Mattie L. Mobley

"I authorize my wife to sign the above act of adoption.

"[S'g'd.] William J. Mobley

"Witnesses:

"[S'g'd.] E. R. Moore

"[S'g'd.] J. L. Biggs

"[S'g'd.] L. W. Bresher, Notary," etc.

It thus appears that both William J. Mobley and his wife, Mattie L. Mobley, formally adopted by notarial acts the minor, Jesse Wood, after having been authorized to do so by the parish judge.

It appears that the property involved was owned by Mrs. Mobley at the time of her death, and therefore it is the act of adoption signed by her which is especially attacked by plaintiffs. Their counsel argue that this act was fatally defective for three reasons:

"(1) Because the duly qualified tutor of the minor failed to evidence his concurrence by joining in the act of adoption in question."

"(2) Because the husband and wife did not 'concur' in the act of adoption."

"(3) Because the act itself is not sufficient in form or declaration as an act of adoption."

It is perfectly clear that Mr. and Mrs. Mobley intended to proceed and did proceed in the adoption of this child under the laws as they existed prior to the passage of Act No. 31 of 1872, which act was probably overlooked by their attorneys and by the judge.

Act No. 31 of 1872 is an act entitled, "An Act Providing the Manner of Adopting Children." This act is written in one section and contains no repealing clause, and reads as follows:

"Section 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana, in General Assembly convened, That any person above the age of twenty-one years shall have the right, by act to be passed before any parish recorder or notary public, to adopt any child under the age of twenty-one years; provided, that if such child shall have a parent or parents, or tutor, that the concurrence of such parent or parents or tutor shall be obtained, and as evidence thereof shall be required to sign said act."

In their proceedings to adopt this minor Mr. and Mrs. Mobley seem to have tracked almost literally the provisions of the laws which existed prior to the passage of Act No. 31 of 1872, which laws are incorporated in Revised Statutes, §§ 2323 to 2328, inclusive. Under the old law, it was not necessary for either the parent or parents or the legally appointed tutor to sign the notarial act of adoption. However, it was necessary that the judge obtain the consent of the parent or parents or tutor before authorizing the adoption by outside parties. But the act of 1872 quoted above specifically provides that "if such child shall have a parent or parents, or tutor, that the concurrence of such parent or parents or tutor shall be obtained, and as evidence thereof shall be required to sign said act."

The child, Jesse Wood,...