Long v. Dufur

• Decision Date: 07 February 1911
• Parties: LONG v. DUFUR et al. [d]
• Court: Oregon Supreme Court

113 P. 59

58 Or. 162

LONG v. DUFUR et al. ^[d]

Supreme Court of Oregon

February 7, 1911

Appeal from Circuit Court, Multnomah County; W.N. Gatens, Judge.

Action by Joel M. Long, as executor of Marion E. Clinton, against E.B. Dufur, as administrator of Richard Clinton, and Hattie Mullen and another. From a judgment for defendant Hattie Mullen, plaintiff appeals. Reversed, with directions.

This is a suit in equity commenced by Marion E. Clinton, widow of Richard Clinton, deceased, to cancel the satisfaction of a mortgage given by him to her prior to their marriage, entered on the margin of the record thereof, on the ground that the satisfaction was entered by a mutual mistake of her and her then husband, and further to foreclose the mortgage. It is alleged in the complaint that the defendant Hattie Mullen and other defendants have, or claim to have, some interest or claim on the real property described in the mortgage, but that the same is subsequent and subordinate to the lien of the mortgage in question. Hattie Mullen resists the decree prayed for, contending in substance that the note and mortgage sued on were fully paid, and that the satisfaction was entered designedly, without mistake, and she further asks for a decree that she is the owner of the real property described in the mortgage, claiming that she is the adopted daughter of Richard Clinton, and in that capacity, as his sole heir, is entitled to inherit the same as against the plaintiff, his widow. After the cause was heard, and while it was under advisement in the circuit court, Mrs. Clinton died and Joel M. Long, as her executor, was substituted as plaintiff. From a decree of the circuit court in favor of Mrs. Mullen, the plaintiff appeals.

Hayward H. Riddell and Martin L. Pipes, for appellant.

John A Jeffrey, Raleigh Trimble, and John B. Moon, for respondents.

BURNETT J. (after stating the facts as above).

The crucial question in the case is whether or not Mrs. Mullen was the adopted daughter of Richard Clinton, deceased. In support of her case Mrs. Mullen introduced in evidence chapter 7, tit. 15, of the Code of Iowa of 1873, reading as follows:

"Of the

Adoption of Children.

"Sec 2307. Any person competent to make a will is authorized in manner hereinafter set forth, to adopt as his own the minor child of another, conferring thereby upon such child all the rights, privileges, and responsibilities which would pertain to the child if born to the person adopting in lawful wedlock.

"Sec 2308. In order thereto, the consent of both parents, if living and not divorced or separated, and if divorced or separated, or if unmarried, the consent of the parent lawfully having the care and providing for the wants of the child, or if either parent is dead, then the consent of the survivor, or if both parents be dead, or the child shall have been and remain abandoned by them, then the consent of the mayor of the city where the child is living, or, if not in a city, then of the clerk of the circuit court of the county where the child is living, shall be given to such adoption by an instrument in writing signed by the parties or party consenting, and stating the names of the parents, if known, the name of the child, if known, the name of the person adopting such child, and the residence of all, if known, and declaring the name by which such child is thereafter to be called and known, and stating also that such child is given to the person adopting, for the purpose of adoption as his own child.

"Sec. 2309. Such instrument in writing shall be also signed by the person adopting, and shall be acknowledged by all the parties thereto in the same manner as deeds affecting real estate are required to be acknowledged; and shall be recorded in the recorder's office in the county where the person adopting resides, and shall be indexed with the name of the parents by adoption as grantor, and the child as grantee, in its original name if stated in the instrument.

"Sec. 2310. Upon the execution, acknowledgment and filing for record of such instrument, the rights, duties and relations between the parent and child by adoption shall, thereafter, in all respects, including the right of inheritance, be the same that exist by law between parent and child by lawful birth.

"Sec. 2311. In case of maltreatment committed or allowed by the adopted parent, or palpable neglect of duty on his part toward such child, the custody thereof may be taken from him and entrusted to another at his expense, if so ordered by the circuit court of the county where the parent resides, and the same proceedings may be had therefor, so far as applicable, as are authorized by law in such a case in the relation of master and apprentice; or the court may, on showing of the facts, require from the adopted parent, bond with security, in a sum to be fixed by him, the county being the obligee, and for the benefit of the child, conditioned for the proper treatment and performance of duty toward the child on the part of the parent; but no action of the court in the premises shall affect or diminish the acquired right of inheritance on the part of the child, to the extent of such right in a natural child of lawful birth."

The reception of this statute in evidence was objected to by the plaintiff on the ground for one thing, that the statute of the sister state of Iowa was not pleaded by the defendant Mullen so as to entitle the same to admission in evidence. The defendant Mullen also introduced in evidence what purported to be copies of two sets of adoption papers relating to her adoption; first, by Cyrus Crooks and Delite Crooks; and, second, by Mary Malinda Clinton and Richard Clinton, which papers, with certificates thereunto annexed, read as follows:

"Articles of Adoption.

"Cyrus Crooks & Delite Crooks to Hattie Jackson. Know all men by these presents,

that we, Albert Jackson & Mary Jackson, father and mother of Hattie Jackson, do by these presents consent and agree that Cyrus Crooks & Delite Crooks may have and by these presents do consent that the said Cyrus & Delite Crooks may have from this time on until the period of said Hattie Jackson's majority the sole and absolute possession of said Hattie Jackson, that they may adopt her as their own child the same as though she had been born unto them as their own child. The said Cyrus Crooks & Delite Crooks do hereby consent to adopt the said Hattie Jackson as their own child and agree that she may have all rights and privileges the same as though she the said Hattie had been born unto them. It is further agreed that the name the said Hattie Jackson shall be known by from the date of this article henceforth shall be Hattie Crooks. This article is made in pursuance of the provisions of the Code of Iowa 1873, and it is mutually agreed between the parties to it that the section of said Code of 1873, in relation to the adoption of children shall be a part of this article and the terms of this article governed thereby. All the above named parties being now residents of Cherokee Co., Iowa. In testimony whereof we have hereunto set our hands this 17th day of January 1876. Albert Jackson. Mary Jackson. Cyrus Crooks. Delite Crooks.

"State of Iowa, Cherokee County--ss.: Be it remembered that on the 17th day of January, A.D.1886, before the undersigned, J.D.F. Smith, a notary public in and for said county, personally came Albert Jackson, Mary M. Jackson, Cyrus Crooks and Delite Crooks to me known to be the identical persons whose names are affixed to the foregoing instrument and acknowledged the execution of the same to be their voluntary act and deed. Witness my hand and notarial seal the day and year last above written. [ Seal] J.D.F. Smith, Notary Public. Filed for record August 23, 1889, at 9 o'clock a.m. O. Gage, Recorder." Above and foregoing articles recorded in Book 1 of Misc. Records, p. 571.

"Adoption Papers.

"Mary Malinda Clinton & Husband to Hattie Crooks, Cyrus Crooks &amp Elizabeth Delite Crooks. Know all men by these presents, that we, Cyrus Crooks and Elizabeth Delite Crooks, husband and wife, residents of Cherokee, Cherokee county, Iowa, having heretofore adopted as our own child Hattie Jackson under the name of Hattie Crooks by articles of adoption duly signed, executed and acknowledged by us and the said child's father and mother Albert Jackson and Mary Malinda Jackson, which articles of adoption were filed for record in the office of the recorder of Cherokee, Cherokee county, Iowa, this 23d day of Aug. 1889, do hereby consent that the said Hattie Crooks, a resident of Cherokee, Cherokee county, Iowa, may be adopted as their own child by her natural mother Mary Malinda Clinton of Portland, Oregon, and Richard Clinton, of Portland, Oregon, husband of said Mary Malinda Clinton, the said child hereafter to be called and known by the name of Hattie Clinton. Said child was fourteen years old Sept. 28, 1888. And the said Mary Malinda Clinton and Richard Clinton hereby agree to adopt and do adopt as their own child with right of inheritance from each of them, the said Hattie Crooks, to be hereafter known and called by the name of Hattie Clinton. Witness our hands this 23d day of August, A.D.1889. Cyrus Crooks. Elizabeth Delite Crooks. Mary Malinda Clinton. Richard Clinton.

"State of Iowa, Cherokee County--ss.: Be it remembered that on this 23d day of August, A.D.1889, before me, M. Wakefield, a notary public in and for said county, personally appeared Elizabeth Delite Crooks and Mary Malinda Clinton to me personally known to be the identical persons whose names are subscribed to the foregoing instrument as makers thereof or grantors therein and severally acknowledged the same to be their free and voluntary act and deed. Witness my hand and...