Holmes v. Curl
| Decision Date | 06 July 1920 |
| Docket Number | 33419 |
| Citation | 178 N.W. 406,189 Iowa 246 |
| Parties | MAUDE ESTELLE HOLMES, Appellee, v. L. E. CURL et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Shelby District Court.--THOMAS ARTHUR, Judge.
SUIT for the partition of real estate. Defendants appeal from a judgment upon demurrer to answer.
Affirmed.
Edward S. White and Thomas H. Smith, for appellants.
Cullison & Cullison, for appellee.
Plaintiff alleged in her petition that, on May 27, 1884, she was, by written articles, adopted by Martin L. and Abigal Curl as their child, her father, Nyram R. Pratt, who was her sole surviving parent, consenting thereto; that said articles of adoption were duly filed for record, and recorded in Book 93 page 614, of the Miscellaneous Records of Shelby County, Iowa, and indexed in Miscellaneous Index 10, as required by law; that, on February 7, 1911, the said Martin L. Curl died intestate, seized of the NW 1/4 of Section 29, Township 81, Range 38 west, leaving the plaintiff and the defendants, except Gerold Adam Coenen and wife and William Coenen and wife, who are purchasers of said land from their codefendants, as his sole heirs at law; that plaintiff is the owner and entitled to the possession of an undivided one-sixth interest therein, and praying a partition thereof and for other equitable relief. The defendants, for joint answer to plaintiff's petition, admitted that Martin L. Curl died intestate, seized of the land described, leaving the defendants only, except the parties above named, as his sole surviving heirs at law; that, on or about the year 1884, the said Martin L. and Abigal Curl and Nyram R. Pratt executed alleged articles of adoption, in words and figures as charged in plaintiff's petition, and that same were duly recorded in Book 93, at page 614, Miscellaneous Records of said county, and indexed as alleged. The said defendants, among other matters, further alleged:
"Further answering the petition and amendment thereto of plaintiff, these defendants allege that the said alleged articles of adoption were not duly and legally executed, and were not duly and legally filed, indexed, and recorded; and that said alleged articles of adoption were wholly lacking in such compliance with the law as required to entitle plaintiff to any rights of an heir, as claimed by her; and that she takes no rights whatever as an heir, and by virtue of said alleged articles of adoption, or in any other manner whatsoever."
And also that, on or about April 1, 1892, the said Martin L. and Abigal Curl, by written articles of adoption, signed and acknowledged as required by law, re-adopted plaintiff to the said Nyram R. Pratt, her father, and that, by reason thereof, she lost all right of inheritance in and to the property or estate of the said Martin L. Curl. In a second count, defendants sought to plead an estoppel, the grounds of which will be referred to in detail later. Copy of the written articles of adoption, executed in 1884, were attached to plaintiff's petition, as was also a copy of the articles of re-adoption to defendant's answer. By an amendment, the defendants voluntarily withdrew the portion of their original answer quoted above, but added:
"Defendants do not hereby waive any rights in this action under their general denial hereinafter set forth, but elect to avail themselves of every right asserted and every right properly claimed under such general denial."
The denial thereafter set out in their answer is as follows:
"Further answering the petition and amendment thereto of plaintiff, defendants deny that plaintiff is now, or, at the date of decease of Martin L. Curl and wife, was, or after the surrender of her custody and control by Martin L. Curl and his wife to the father of plaintiff was, or after the execution and recording of the instrument in the answer of defendants described (and recorded in Book 93 at page 614 of the public Miscellaneous Records of Shelby County, Iowa, in the office of the county recorder) was, the adopted child of said Martin L. Curl or of said Abigal Curl, under the facts as pleaded in the above-entitled cause; and defendants, further pleading herein, deny each and every allegation in the petition and amendment thereto of plaintiff not herein expressly admitted."
It is further alleged in said amendment that, after the execution of the second articles of adoption, Martin L. and Abigal Curl surrendered the care and custody of plaintiff to her father, and that she ceased thereafter to reside with or serve them.
To defendant's answer and each count thereof, the plaintiff interposed a general equitable demurrer, which was sustained; and, defendants having elected not to plead over, a decree was entered, finding and adjudging plaintiff as the owner of an undivided one-sixth interest in the above-described real estate, and ordering the same sold and the proceeds divided according to the interest of each of the respective parties hereto.
I. It is claimed by counsel for appellant that their answer denied the following allegations of plaintiff's petition: (a) That the articles of adoption relied upon were in manner and form as required by law; (b) that same were duly and legally executed; (c) that Nyram R. Pratt was the sole surviving parent of plaintiff; and (d) that same were duly and properly filed, recorded, and indexed.
The due execution, recording, and indexing of the articles are alleged in plaintiff's petition, in addition to the specific allegations stated above. These allegations, however, amounted to nothing more than the statement of legal conclusions, and hence the denial had no other effect than to deny them as such. The allegation, however, that Nyram R. Pratt was the sole surviving parent of plaintiff was the statement of a material ultimate fact, which plaintiff was bound to prove, and not a legal conclusion.
On the other hand, it is contended by counsel for appellee that defendant's denial did not put in issue any of the material allegations of the petition, as distinguished from legal conclusions, and that, under the admissions of the answer, plaintiff made out a prima-facie case. Some reliance is also placed by counsel for appellee upon the recital in the articles of adoption describing Nyram R. Pratt as the sole surviving parent of plaintiff, and upon the fact that, under Section 3629 of the Code, any defense relied upon to avoid the articles of adoption must be specially pleaded. The written instrument was duly acknowledged before a notary public, and admissible in evidence without further proof. Code Section 4629. The relationship of plaintiff and Nyram R. Pratt is admitted and alleged in defendant's answer, and it is nowhere alleged therein, nor is claim made in argument, that he was not her sole surviving parent. It is contended by counsel for appellee, both in their written and oral arguments, and not denied by counsel for appellant, that defendant's denial was not relied upon in the court below to raise the question now argued, and that, in the submission of the demurrer, it was wholly ignored, and only the legal questions raised by the demurrer considered by either party or by the court. It is manifest from the record that it was not intended by defendants by said denial to raise the question of the authority of Pratt to consent to the adoption. This is made clear by the withdrawal from their original answer of the portion quoted above. Evidently, counsel upon both sides sought to dispose of the question of plaintiff's interest in the estate upon demurrer, and they did not rely upon a technical denial of an allegation in plaintiff's petition about which there is manifestly no dispute. As the allegations of the petition in the court below were treated as sufficient to make out a prima-facie case, and the demurrer to the answer was disposed of on both sides without reference to the qualified denial contained therein, we will so treat the matter in this court. In view of this conclusion, it is unnecessary to determine or discuss the other matters referred to by counsel in argument upon this point.
II. No right of adoption existed at common law, but it is authorized by Chapter 7, Title XVI, of the Code of 1897. The Code of 1873 contained a similar provision. Section 3251 confers authority upon the sole surviving parent to consent to the adoption of a minor child by written articles of adoption, and provides what shall be contained therein. Section 3252 requires that same be signed and acknowledged by such parent and by the adopting parties, and that it be recorded in the recorder's office in the county where the persons adopting reside, and be indexed with the name of the parent by adoption as grantor, and the name of the child as grantee, in its original name, if stated in the instrument. Section 3253 provides:
"Upon the execution, acknowledgment and filing for record of such instrument, the rights, duties and relations between the parent and child by adoption shall be the same that exist by law between parent and child by lawful birth."
But for the alleged re-adoption of plaintiff by her father, her right to inherit from Martin L. Curl must be conceded. The decision of this question, therefore, depends upon the effect to be given to the second articles of adoption.
Counsel for appellee contend that plaintiff did not lose her right of inheritance, acquired by the original articles of adoption, for the reasons: (a) That Martin L. and Abigal Curl had no authority to execute the articles of adoption relied upon;...
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