Sears v. Davis

• Decision Date: 31 May 1929
• Docket Number: (No. 534.)
• Citation: 19 S.W.2d 159
• Parties: SEARS et ux. v. DAVIS et ux.
• Court: Texas Court of Appeals

Page 159

19 S.W.2d 159

SEARS et ux. v. DAVIS et ux.

(No. 534.)

Court of Civil Appeals of Texas. Eastland.

May 31, 1929.

Rehearing Denied July 12, 1929.

Appeal from District Court, Callahan County; M. S. Long, Judge.

Habeas corpus proceeding by T. D. Sears and wife against Porter J. Davis and wife to recover the possession and custody of relators' minor son. Judgment for respondents, and relators appeal. Reversed and rendered.

Jno. W. Woods, of Dallas, and Mack & Mack, of Fort Worth, for appellants.

Paul V. Harrell, of Cross Plains, and Samuels, Foster, Brown & McGee, of Fort Worth, for appellees.

FUNDERBURK, J.

This suit, a habeas corpus proceeding, was brought by appellants, T. D. Sears and wife, Alva McBroom Sears, against appellees Porter J. Davis and wife, Annie Davis, to recover possession and custody of Kent Sears, Jr., the minor son of appellants. The appellants' pleading consists of a brief application for the writ, among the meager allegations of which are that said Kent Sears, Jr., is the minor child of appellants, is in their possession, and is illegally restrained of his liberty by the said Porter J. Davis and wife, Annie Davis. Appellees, by way of answer to the writ, after a general demurrer and general denial, alleged that Mrs. Alva McBroom Sears, under the name of Alva McBroom, had, by written instrument duly acknowledged, empowered the Hope Cottage Association of Dallas County to secure for her infant child a home with people of their selection, who may or may not adopt said child; that under such authority respondents took said child on July 7, 1925, and on said date adopted it; that if there was any fraud practiced upon the said mother of the child in obtaining her signature and acknowledgment to said instrument, they were not parties thereto, not knowing of same, and that it occurred prior to the time they received the child; that they acted in good faith in so adopting said child, and said Alva McBroom is estopped from asserting any fraud practiced upon her in obtaining her signature to the instrument. The answer further alleged the good moral character of both the respondents; that they had never abused or neglected the child; that the child had been in their exclusive custody, control, and possession for almost three years and ever since it was approximately three months of age; that they had become greatly attached to the child and it to them; that they had made and provided for it a good home, were rearing it under good influence and Christian surroundings; were able to and would properly provide, care for, and educate said child; and that it was to the best interest of the child that it remain in their exclusive custody, care, and control. The answer further averred that respondents had no other children and their affections had been and were being lavished upon said child.

Upon the trial before the court without a jury, judgment was rendered in favor of the respondents, awarding to them the permanent care, custody, control, and possession of the child. The relators have appealed.

The trial judge, in response to proper request therefor, filed conclusions of fact and law. The findings of fact, briefly summarized and omitting such as are deemed immaterial, were: That Kent McBroom Sears was born out of wedlock on April 21, 1925; was a few hours later sent to Hope Cottage in Dallas; that on April 28, 1925, when the child was a week old, the mother signed, executed, and acknowledged an instrument in which she recited that the father of the child was Richard Jones, and authorized and empowered the Hope Cottage Association to secure for the child a home with people of their selection who might or might not adopt it; that she waived any and all liability that might accrue by virtue of her parental authority; that on July 7, 1925, said child was placed by Hope Cottage Association with Porter J. Davis and wife, Annie Davis, who on said day duly and legally adopted said child; that respondents have no natural children, have looked after and cared for said child with as much solicitude and care, and have supplied all of its wants and have lavished their affections on it as freely as if it were their natural child; that it has been with them since infancy, knows no other home or parents; that it is in an ideal home; respondents are church people, members of and attend church, and the child will be reared by them under church influence, properly educated by them; that respondents are industrious, frugal, and economical, and have accumulated property of the value of $12,000, including a home owned by them in close proximity to churches and good schools. The court further found that it would be a great injustice to the child to sever its then existing relationship, and that the best interest of the child required that it remain in the custody and control of the respondents. The court further found that the mother, at the time of the execution of said instrument, was not married, and that the father was asserting no claim to the child, and that it was in pursuance of the authority set out in said instrument that the child was placed with the respondents and by them duly and legally adopted. It was further found that plaintiffs were married about April 30, 1925, some 30 days after the birth of the child; that neither of them have ever evidenced any great concern or displayed any great affection for the child; that they have never contributed anything to its support or maintenance; that during about 15 days when the mother remained at the maternity home where the child was born, the father visited her three or four times; that plaintiffs left Dallas together and neither undertook to see the child nor to inquire concerning its welfare until about August 17, 1925, during which time neither manifested any interest in the welfare of the child; that after about two years suit was filed by plaintiffs in the district court of Dallas county, seeking to recover custody and possession of said child; that up to the time of filing of said suit, outside of two letters addressed to Hope Cottage Association, in response to which information was given that the child had been adopted by good people, neither of the plaintiffs made any inquiry concerning the child.

Further findings were that plaintiffs do not own any home, that they are tenants living some three or four miles from school and churches; that they have no property other than some farming tools, implements, workstock, and about 25 head of cattle, and an unharvested grain crop, consisting of wheat and oats of an undetermined amount, and a cotton crop of about 25 acres, planted but not matured; that plaintiffs had no connection or association with said child since its birth, and there are no ties of affection existing between it and them, and that the respondents are much better qualified intellectually and morally, and better suited and equipped, for the proper rearing and educating of said child than are the plaintiffs. It was further found that to destroy or discontinue its present relationship would work great and unnecessary hardship on the child and might materially affect its future; that the child's welfare might be greatly impaired by making any change in its relationship, due to the fact that it had been and was growing up as a member of the family of respondents; that it knows no other home or parents, and it would be much to the advantage and benefit of the child to permit it to remain in the custody and control of the respondents, who were in all respects better suited and better fitted to have the care, custody, and control of said child than the plaintiffs.

We sustain appellants' contentions to the effect that appellees acquired no rights to the custody of the child by virtue of the writing signed by Mrs. Sears or by the fact of adoption. The instrument in question, omitting acknowledgment, is as follows:

"State of Texas, County of Dallas.

"Know All Men by These Presents: That I, Alva McBroom of Dallas County, in the State of Texas, for and in consideration of the benefits that will accrue to my child, hereby authorize and empower Hope Cottage Association of the City and County of Dallas, in the State of Texas, to place my infant son, whose father is Richard Jones, and fully authorize the said Hope Cottage Association to secure for the said child a home with people of their selection, who may or may not adopt said child, hereby waiving any and all liability that may accrue by virtue of the hereinbefore mentioned authority, and agree that no accounting shall be made to me at any time of the whereabouts of the said child.

"Witness my hand at Dallas, this 8th day of April, A. D. 1925.

                                      "Alva McBroom
                                          "Mother
                                      "__________
                                          "Father."
                

Our original adoption statute, first enacted in 1850, provided that any person wishing to adopt another as his legal heir shall file in the office of the county clerk of the county in which he resides, a written statement signed by him and duly authenticated or acknowledged, as deeds are required to be, reciting, in substance, that he adopts the person named therein as his legal heir, and the same shall be admitted to record in said office. Rev. St. 1925, art. 42. This statute alone did not operate to confer upon a person adopting a child the right to its custody. Its effect was stated in the State ex rel. Walton v. Yturria, 109 Tex. 220, 204 S. W. 315, L. R. A. 1918F, 1079, as follows: "On the authority of Eckford v. Knox [67 Tex. 204, 2 S. W. 372], it was determined in Taylor v. Deseve, 81 Tex. 249, 16 S. W. 1008, that adoption in Texas did not have the same effect as paternity and filiation, and did not make the adopted person a constituent of the family of the adopter."

Rev. St. 1925, art. 44, was enacted in 1907, and provides: "The parent or parents, of a child who is to be so adopted may, by an...