Haworth v. Haworth

• Decision Date: 05 March 1907
• Citation: Haworth v. Haworth, 100 S.W. 531, 123 Mo. App. 303 (Mo. App. 1907)
• Parties: HAWORTH, Respondent, v. HAWORTH et al., Appellants
• Court: Missouri Court of Appeals

100 S.W. 531

123 Mo.App. 303

HAWORTH, Respondent, v. HAWORTH et al., Appellants

Court of Appeals of Missouri, St. Louis

March 5, 1907

Appeal from Howell Circuit Court.--Hon. W. N. Evans, Judge.

AFFIRMED.

STATEMENT.--The action is to establish a deed of adoption, alleged to have been duly executed and acknowledged by J. M. Haworth in his lifetime, adopting the plaintiff, John H. Haworth, as his child and heir, which deed the petition alleges was duly recorded on the records of deeds, in the recorder's office of Taney county, Missouri, and that both the original deed and the record thereof were destroyed by fire in December, 1885.The petition states that John M. Haworth died intestate, in October, 1903, and that Charity Haworth is his widow and the administratrix of his estate, alleged to be worth, in real and personal property, about eight thousand dollars; that J. M. Haworth left no children of their descendants surviving him, and the other defendants, except a widow, are the descendants of his brothers and sisters deceased, and his only heirs at law.

Among other things, the answer sets up the following special defenses:

"Further answering these defendants say that this court has no jurisdiction, either by law or in equity, over the persons or the subject-matter of this suit, nor has it any authority to enter any judgment against them therein.That defendants have no such direct interest in establishment of the deed of adoption, mentioned in plaintiff's petition, as will authorize the court to render any judgment against them either at law or in equity, even for costs.

"These defendants further say, in answer to said petition that the deed of adoption, if established as prayed in the plaintiff's petition, would be ineffective as evidence in his behalf, because the same is not alleged to have been executed in the manner and with the formalities required by law.

"Defendants further answering plaintiff's petition, say that the plaintiff's right to institute and prosecute this suit accrued to him more than five years before the filing of the original petition herein, and further they aver that plaintiff's right to institute and prosecute this suit accrued to him more than ten years before the filing of the original petition herein.

"Defendants say that plaintiff should not have or recover any judgment of any kind against them, because he does not allege in his petition that they are withholding any personal or property rights from him which he possesses, or to which he is entitled, either in law or equity."

The evidence tends to show that plaintiff's father, who was the brother of J. M. Haworth, died in the State of Kentucky about the year 1870 or '71, when plaintiff was six or seven years of age; that J. M. Haworth went to Kentucky after his brother's death, and brought plaintiff to his home in Taney county, Missouri, and plaintiff continued thereafter to reside in the family of J. M. Haworth, as a member thereof until he attained his majority and was married.There is positive and direct evidence by a former recorder of deeds and a deputy recorder, of Taney county, that they had both seen and examined the record of the deed of adoption spread on the records of Taney county, prior to the year 1885, which deed they testified purported to be executed by J. M Haworth, and recited, among other considerations, that on account of love and affection he adopted J. H. Haworth as and for his child and heir.Both testified the deed was in the usual form, and the deputy testified he looked it up at the request of J. M. Haworth and saw that it was duly acknowledged before Thomas A. Layton, clerk of the circuit court of Taney county.Other witnesses testified to declarations of J. M. Haworth, made at various times during his lifetime, "that he intended to adopt plaintiff and that he had adopted him and he was his boy."The evidence is that the original deed of adoption was left in the recorder's office by J. M. Haworth and it and the record thereof was destroyed by fire in 1885, which fire totally consumed the courthouse and all the county records of Taney county.

The suit was commenced in Taney county but was sent to the circuit court of Howell county on change of venue, where it was heard by Hon. W. N. Evans, judge of said court, who found that a deed of adoption in the following form was duly executed and acknowledged by J. M. Haworth in his lifetime to-wit:

"This deed made and entered into this ___ day of ___ 187__, by and between J. M. Haworth, of the county of Taney, in the State of Missouri, of the first part, and John H. Haworth, a minor and nephew of the said J. M. Haworth, of the county of Taney in the State of Missouri, party of the second part.

"Witnesseth, That J. M. Haworth, the said party of the first part, in consideration of the sum of one dollar to him in hand paid, the receipt of which is hereby acknowledged, and in further consideration of the love and affection the said J. M. Haworth bears unto his minor nephew John Haworth, and divers other considerations him thereto moving, has adopted, and hereby does by these presents adopt the said John H. Haworth as and for his child, heir and devisee, under and by virtue of the statutes of Missouri relating to the adoption of children.

"In testimony whereof the said party of the first part has hereunto set his hand and seal the day and year first above written.

"J. M. HAWORTH.(Seal)

"State of Missouri, County of Taney, ss.

"On this ___ day ___ 187__, before me personally appeared J. M. Haworth, to me known to be the person described and who executed the foregoing instrument, and acknowledged that he executed the same as his voluntary act and deed for the uses therein contained.

"In the testimony whereof I have hereunto set my hand and affixed my official seal, on the day and year last above written.THOMAS F. LAYTON,

"Clerk Circuit Court of Taney County, Mo.'

The court further found that the deed had been duly recorded on the records of deeds of Taney county, that the original and the record thereof had been destroyed by fire in the year 1885, and rendered the following judgment and decree:

"It is therefore considered, adjudged and decreed by the court that the existence of said deed of adoption so made, executed, acknowledged and recorded as aforesaid, together with the existence of the record thereof, be, and the same are hereby by this decree, re-established as fully and completely as the same are herein set forth, and that the same shall relate back to the day and date said original deed of adoption was executed, filed and recorded upon the deed records of Taney county, Missouri, as aforesaid, and that said deed of adoption shall have the same force, effect and virtue in law as if said original deed of adoption and record thereof were now in existence."

Timely motions for new trial and in arrest of judgment were filed by defendant, both of which were overruled by the court, whereupon defendants appealed to this court.

Judgment affirmed.

Price & Ford for appellants.

(1) The adoption being in derogation of the common law, and of purely statutory enactment, like all other similar statutes, must be strictly followed, and the proof must be so cogent, clear and forcible as to leave no doubt in the mind of the chancellor.There must be no equivocation or uncertainty in the case.It must be in terms a contract, and not a mere declaration of...