In re Clements

• Decision Date: 30 April 1883
• Parties: IN THE MATTER OF CHARLES B. CLEMENTS.
• Court: Missouri Supreme Court

78 Mo. 352

IN THE MATTER OF CHARLES B. CLEMENTS.

Supreme Court of Missouri.

April Term, 1883.

Petition for Habeas Corpus.

Chas. A. Winslow for petitioners

R. L. Brockenbrough for respondent.

HOUGH, C. J.

This is a proceeding under the habeas corpus act, at the relation of the Managers of the Roman Catholic Orphan Asylum, a body corporate, asking to have the person of Chas. B. Clements, an infant five years of age, taken from the custody of the respondent, Wm. V. Rutledge, and delivered to them. The relators claim the right to the custody of said child under and by virtue of an instrument in writing executed July 3rd, 1882, by Sallie D. Clements, mother and sole surviving parent of said child, committing the care, custody and education of said child to them. The respondent claims the right to the custody of said infant by virtue of a certain deed of adoption executed by him March 1st, 1882, under sections 599, 601, of the Revised Statutes, to which deed the said Sallie D. Clements was a party, and by which she consented to said adoption, and released to said Rutledge, all her right to the care and custody of said infant. This deed was duly acknowledged by the said Rutledge and the said Clements, and was recorded in the recorder's office March 2nd, 1882. A day or two after the deed of adoption was executed, the respondent, at the request of Mrs. Clements, signed a paper stating that “Mrs. Clements can have her son, Charles B. Clements, at any time she calls for him.” The principal question presented for determination is as to the effect of the deed of adoption, executed by the respondent and the mother of the child.

The statute under which the deed in question was made, is as follows:

“Section 599. If any person in this State shall desire to adopt any child or children, as his or her heir or devisee, it shall be lawful for such person to do the same by deed, which deed shall be executed, ackowledged and recorded in the county of the residence of the person executing the same, as in the case of conveyance of real estate.

Section 600. A married woman, by joining in the deed of adoption with her husband, shall, with her husband, be capable of adopting any child or children.

Section 601. From the time of filing the deed with the recorder, the child or children adopted shall have the same right against the person or persons executing the same, for support and maintenance and for proper and humane treatment, as a child has, by law, against lawful parents; and such adopted child shall have, in all respects, and enjoy all such rights and privileges as against the persons executing the deed of adoption. This provision shall not extend to other parties, but is wholly confined to parties executing the deed of adoption.”

It is contended on behalf of the relator, that the 3rd section of the foregoing statute (§ 601) is unconstitutional, inasmuch as its provisions cannot be carried into effect unless the adoptive father is invested with the right to the custody and control of the child adopted, and said section, therefore, impliedly gives to the adoptive father such custody and control, without the consent of the natural parents. It is further contended, that as the consent of the parents is not provided for by the statute, the consent of Mrs. Clements, embodied in the deed of adoption, that the respondent should assume the custody and control of her child, can have no other or greater effect than it would have, if she had not joined in the deed of adoption, and such consent had been given orally, or in a separate instrument; in...