Pursifull v. Pursifull

• Decision Date: 31 December 1923
• Docket Number: No. 23601.,23601.
• Citation: 257 S.W. 117
• Parties: PURSIFULL v. PURSIFULL et al.
• Court: Missouri Supreme Court

257 S.W. 117

PURSIFULL v. PURSIFULL et al.

No. 23601.

Supreme Court of Missouri, Division No. 1.

December 31, 1923.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by J. J. Pursifull against Francis M. Pursifull and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Lamar & Lamar, of Houston, and Curtis & Vandeventer, of Hartville, for appellant. W. L. Hiett, of Houston, for respondents.

GRAVES, P. J.

The petition in this cause is in two counts. By the first count it is averred by the plaintiff that he was legally adopted by J. M. Pursifull, deceased, although said deed of adoption, or a record thereof, could not be found. The force of this count is to allege an adoption by deed.

The second count of the petition charges an agreement to adopt, and the fulfillment of the terms thereof by plaintiff, and prays the specific performance thereof be decreed, and the plaintiff be declared to be the adopted child of the said J. M. Pursifull. J. M. Pursifull died without issue and intestate, leaving a considerable estate in Texas county, Mo. The defendants include all of the collateral heirs of deceased.

The answer was (1) a denial of the charges in the petition, save and except things specifically admitted; (2) that deceased took the plaintiff under a deed of indenture as an apprentice, and not otherwise, the terms of which deed of apprenticeship it is averred were fully performed by deceased; and (3) that plaintiff did not perform the terms of the said deed of apprenticeship, but left the deceased without excuse, and abandoned said deed and the provisions thereof. No reply was filed, according to the record showing, but the case proceeded in the course of trial as if one had been filed. The trial court found "the issuance all and singular for the defendants," and entered judgment accordingly. Motion for new trial being overruled, the plaintiff has appealed. Further details will follow in the course of the opinion, but the foregoing is an outline of the case.

There is not sufficient evidence of a written contract or deed of adoption, so that the cause of action stated in the first count of the petition drops out. We need not pass upon the question as to whether or not the peculiar wording of this count disrobed it of vitality as a petition under an alleged deed of adoption. We can concede its sufficiency as a pleading, and yet, as to this count of the petition, sustain the action of the trial court in the judgment nisi.

There is no substantial evidence to show a statutory or other written deed of adoption. On the other hand, there is positive evidence that deceased procured from the county court a deed of apprenticeship, the mother of plaintiff at the time being a mental deficient, and a county charge. By a process of elimination we can reach the real issues for decision here. Under the evidence the first count of the petition must fall into the discard.

II. Going to the second count of the petition, which avers an agreement to adopt, we encounter some preliminary questions urged as reasons for a reversal of the judgment. On this branch of the case, the trial took the usual course. Neighbors testified that J. M. Pursifull (usually called by the name "Matt") said that he had adopted him, meaning the plaintiff. To offset this evidence there were introduced statements of J. M. Pursifull, to the effect that he had not adopted or agreed to adopt the plaintiff, which evidence seems to have been received conditionally; i. e., that the objections thereto should be passed upon later. This because we find in the record the following:

"By the Court: The court, upon the objection to evidence heretofore made, rules that the statements of the parties defendant as to their knowledge of any fact is admissible in evidence against them, whether they had, at the time of such statement, any interest or not.

"The court, upon the question as to whether to the declaration of the deceased tending to show that he had not adopted the child, are admissible as evidence and will be considered by the court. To which action of the court the plaintiff then and there at the time duly objected and excepted."

A sample of this character of evidence is found in the testimony of a Mrs. Dixon, who is quoted as saying:

"Matt came to my father's house many, many times. The subject was raised in our house about Jimmie, and he said, `They have told that I adopted Jimmie Pursifull, but I have not adopted him.' I was 16 or 17 years old at the time."

For the plaintiff there was substantial evidence to the effect that J. M. (Matt) Pursifull had said that the plaintiff was his boy; that he had "adopted" him. The ruling of the court clearly shows that the testimony of the witnesses to the effect that J. M. Pursifull said he had not adopted the plaintiff was considered by the court as material and competent. With that evidence emphasized before him, in the manner aforesaid, the judge passed upon this case. Was this evidence competent? In determining this matter, it must be considered that plain country folks (as we have here) would not draw a distinction between a deed of adoption and an agreement to adopt or make a person an heir. The plaintiff was proving admissions against interest in an effort to show a contract to adopt, or make plaintiff an heir. The evidence admitted was a self-serving statement tending to destroy the admission. These self-serving statements were long after the date of contract, if one was...