Nichols v. Nichols

• Decision Date: 04 May 1927
• Docket Number: No. 7573.,7573.
• Parties: NICHOLS v. NICHOLS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

20 F.2d 474 (1927)

NICHOLS v. NICHOLS et al.

No. 7573.

Circuit Court of Appeals, Eighth Circuit.

May 4, 1927.

William E. Kemp, of Kansas City, Mo. (A. L. Cooper and E. A. Neel, both of Kansas City, Mo., and Samuel Griffin and W. E. York, both of Medicine Lodge, Kan., on the brief), for appellant.

Joseph G. Carey, of Wichita, Kan. (R. R. Vermilion, Earle W. Evans and W. F. Lilleston, all of Wichita, Kan., and O. W. Watkins, of St. Joseph, Mo., on the brief), for appellees.

Before STONE and KENYON, Circuit Judges.

KENYON, Circuit Judge.

This case, brought by appellant in the state court of Kansas, was transferred to the federal court.

The first cause of action stated in the petition is that plaintiff at about the age of 4 years became an inmate of the Gillis Orphans' Home in Kansas City, Mo., having been left there by his stepfather; that shortly thereafter he was adopted by W. K. Nichols and Mattie B. Nichols, his wife; that W. K. Nichols died intestate on the 1st day of January, 1914, and his wife, Mattie B. Nichols, died intestate on the 5th day of January, 1917, and at the time of their death they were possessed of a large amount of real estate; that plaintiff as the adopted son and only heir at law was entitled to said real estate.

The second clause of action in the complaint sets forth: That at the time of said adoption said W. K. Nichols and Mattie B. Nichols orally agreed with said Gillis Orphans' Home that they would adopt said Walter K. Nichols, provide for, rear, and educate him as their own child, and that at their death he should receive all of their property and estate; that the said Walter K. Nichols treated the said W. K. Nichols and Mattie B. Nichols as his father and mother, and they treated him as a son. Appellant claims that he has performed all the obligations, duties, and conditions of the agreement, and is entitled to a specific performance of the contract, and asks judgment that he be decreed to be the owner in fee simple and entitled to the immediate possession of all the real estate which remained at the time of the death of Mattie B. Nichols.

To this petition appellees (who claim to be the sole heirs of W. K. Nichols and Mattie B. Nichols, two of them being sisters and one a brother of Mattie B. Nichols) filed in the District Court of the United States their answer, denying the adoption of appellant by W. K. Nichols and Mattie B. Nichols; alleging there never was any statutory or other proceeding in connection with the alleged adoption; denying any agreement with the Gillis institution that W. K. Nichols and Mattie B. Nichols would adopt the said appellant, and that he should have at their death all of their property and estate. They admit that said Walter K. Nichols did live at the home of W. K. Nichols and Mattie B. Nichols until he became of age. Also, in the nature of a cross-petition, appellees plead that the probate court of Barber county, Kan., having full jurisdiction of the estate of W. K. Nichols, administered upon and closed the same; that the order of final settlement, made on May 20, 1914, recited "that said Mattie B. Nichols is the widow and the sole and only heir at law of the deceased, and as such is entitled to all of the personal property of the deceased on distribution herein, and that as such sole and only heir at law the said Mattie B. Nichols is the absolute owner in fee simple of all of the real estate of the said deceased, said deceased having died intestate leaving no other heirs than the said Mattie B. Nichols"; that this order was not appealed from, and is conclusive and res adjudicata as to who were the heirs of W. K. Nichols; that following the death of Mattie B. Nichols administration of her estate was had in the probate court of Barber county, Kan., and an order of final settlement was made on November 10, 1917, pursuant to legal notice, and conformable to law, finding that appellees were the sole heirs; that said order was a final adjudication as to who were the heirs of Mattie B. Nichols.

Appellees in their answer further set forth that during the lifetime of Mattie B. Nichols she instituted in the district court of Barber county, Kan., a proceeding to quiet title against certain parties, including Walter Kirtley Nichols, appellant here; that in that action the court found that due and legal service of summons had been made upon said Walter Kirtley Nichols, and that plaintiff in that suit, Mattie B. Nichols, was the owner in fee simple and in possession of the real estate described in the petition, and that the court further found that Walter Kirtley Nichols had no right, title, interest in, or claim upon the real estate involved in that suit (which is the same real estate involved in this suit). The answer further alleges that this judgment of the district court of Barber county, Kan., was never appealed from; that plaintiff's claim is without foundation and legal right, and casts a cloud upon the title of appellees' real estate. The said answer prays "that plaintiff take nothing by this action and that plaintiff's petition herein be dismissed, and that on their counterclaim these defendants be decreed to be the absolute owners of the real estate described in plaintiff's petition, and that the plaintiff herein be decreed to have no valid right, title, or interest in and to the same, and that these defendants have such other and further relief as they may be entitled to in equity, and for the costs of this suit."

Appellant filed a reply, after an order pro confesso duly entered had been set aside by the court, admitting the probate proceedings in Barber county, Kan., relative to the estate of W. K. Nichols and Mattie B. Nichols, but claiming that the probate court had no jurisdiction over the estate of Mattie B. Nichols to determine questions of title to property so as to conclude heirs or persons claiming an interest in the estate, or to decide who were the heirs at law of said Mattie B. Nichols. Appellant also in said reply admitted that during the lifetime of Mattie B. Nichols she instituted a proceeding to quiet title against certain parties, including Walter Kirtley Nichols, to the land described in appellant's petition, but denies that the suit was duly and regularly brought, and that appellant was duly and regularly served by publication, or that said cause came on regularly for hearing on the 1st day of January, 1915, or that due and legal service or summons was had upon this appellant, but admits the proceedings had were substantially as set out in appellees' answer.

Appellees moved for judgment on the pleadings. The court sustained this motion, and on March 18, 1926, a decree was entered in the United States District Court at Wichita, Kan., by which the title of appellees against appellant was established and all persons claiming by, through, or under appellant were barred, estopped, and foreclosed from asserting or claiming any right, title, interest, estate, claim, lien, or incumbrance in or upon said real estate or any part thereof. The decree contains this: "And the court finds that, in view of the pleadings and the admitted facts and all of the circumstances of the case, the plaintiff is not entitled to recover from the defendants, or any of them, on any issue presented by the pleadings."

The case is rather a unique and strange one. Plaintiff arrived at age in 1913 and went out in the world for himself. W. K. Nichols died in 1914, and his estate was closed in May, 1914, by proper order. Mattie B. Nichols died in 1917, and her estate was likewise closed in 1917. This suit was not commenced until 8½ years after her death. The case was determined by the trial court on the pleadings, and, according to the language of the decree, some "admitted facts." Not all of the various court proceedings are in the record presented to us. The proceedings to quiet title which are alleged to be a part of the answer are not here, and the record is incomplete and unsatisfactory in this respect. Counsel for appellees state in their brief: "However, during the argument in the court below, duly certified and admittedly correct copies of all proceedings referred to were produced and under controlling authorities the quiet title proceedings were found to be sufficient." The reply brief takes no issue with this statement.

Appellees' motion for judgment on the pleadings admitted the truth of all well-pleaded facts in the petition and the reply. 21 R. C. L. p. 594.

The first cause of action in the petition was based on an alleged adoption of appellant. It is not set forth how the alleged adoption was brought about. There is no pretense of statutory adoption. It was admitted before this court in oral argument that there was no statutory adoption. However, appellant claims in its reply brief that the allegations "that plaintiff was adopted," and that plaintiff is "the only heir at law" of said W. K. Nichols and Mattie B. Nichols is sufficient to state a cause of action.

The adoption of children is regulated by statute in Kansas. Rev. Stat. Kan. 1923, 38 — 105 to 38 — 107 (which are substantially the same as those in effect at the time of the alleged adoption). These statutes provide court proceedings. The adoption of children in a particular state must comply with, and be carried out in pursuance of, the statute of the state. The rule is stated in 1 Corpus Juris, p. 1373, as follows: "Since adoption is unknown to the common law, it follows that a legal adoption can be effected in no other way than that provided by the statute authorizing it, and all the courts are agreed that there must be at least a substantial compliance with all the essential requirements of the statute. A parol adoption is not sufficient, nor is an adoption effected by a mere surrender of the custody of the child, nor by merely recognzing and referring to a child as an adopted child."

In Malaney v. Cameron, 98 Kan. 620, 159 P. 19, it is held that, inasmuch as the statutory...