Abney v. DeLoach

84 Ala. 393

• Court: Supreme Court of Alabama
• Decided: December 15, 1887
• Status: Published

Opinion

SOMEEVILLE, J.

The bill is filed by certain kindred of John N. Sanders, deceased, claiming to be heirs and distributees of Ms estate, and seeking to bring the administrator to a settlement of his trust in a-Court of Chancery. The bill makes one John Sanders Mims, alias John Sanders, who is a minor, a party defendant, as one who claims to be solely entitled to the estate, subject to the dower and distributive rights of the widow of the deceased. This claim is stated to be based on a declaration in writing, executed by John N. Sanders, the deceased, during -his life-time, and attested, acknowledged and filed for record in the office of the judge of probate of Monroe county, which instrument purports to adopt said minor as the lawful heir of the intestate, under the provisions of our statute regulating' the mode of adopting children. — Code, 1886, §§2365-2368; Code, 1876, §§2743-2745; Code, 1852, §§2009-2011.

Section 2365 of the present Code, which has remained unaltered in phraseology since the Code of 1852 (§ 2009), where the statute first appeared in its present form, has reference only to proceedings to legitimate bastard children. It declares that this may be done by the father of the bastard, by his making a declaration in writing, attested by two witnesses, setting forth certain specified facts, duly acknowledged by the maker, or probated by one of the attesting witnesses, “filed in the office of the judge of probate, and recorded on the minutes of his court.’’’’ It is provided in the following section that the father may, at the same time, change the name of the said child by stating in his declaration the name it is then known by, and the name he wishes it afterwards to have. — Code, 1886, § 2366; Code, 1876, § 2744.

Then follows this section as to the mode of adopting any child of another into one’s family, which is the law governing the rights of the parties in this case:

“ Any person desirous to adopt a child so as to make it capable of inheriting his estate, real and personal, or to change the name of one previously adopted, may make a declaration in writing, attested by two witnesses, setting forth the name, sex and age of the child he wishes to adopt, and the name he wishes it thereafter to be known by, which being aohnoipledged by the declarant before the judge of probate of the county of his residence, filed and recorded as in the two preceding sections, has the effect to make the child capable of inheriting such estate of the declarant and of changing its name to the one stated in the declaration; and for the services under this chapter the judge of probate is entitled to a fee of one dollar.” — Code, 1886, § 2367 (2745.)

Adoption is the taking into one’s family the child of another as son and heir, conferring on it “a title to the privileges and rights of a child’, — an act, in other words, “by 'which a person appoints as his heir the child of another.” Russell v. Russell, 84 Ala. 48. The right with us is purely statutory, and was never recognizedby the rules of the common Iuav. It was, however, a feature of the Boman law, and obtains in Germany and Prance, and some other continental nations of Europe, whose jurisprudence in this respect has followed the civil law. It prevailed also as a custom among the ancient JeAvs. Statutes regulating different modes of adoption prevail in, perhaps, a dozen or more of the American States. In this State prior to the Code of 1852, the right of adoption was limited to the legitimation of bastard children by their fathers. The mode of procedure was for him “to file in open court, in either the County or Circuit Court” of the county in which he resided, a declaration or statement in writing, setting forth the name and age of the child, and the name of the mother, and his recognition of it as his natural child, Avhich, after being signed by the father, was required to be attested by the clerk of the court in which it is filed, and entered at full lemjlli of record.” — Clay’s Dig. (1843) p. 135, § 9. In most of the States, the mode pursued is by petition to the Probate or other like court, stating the requisite facts, Avitli the name and description of the child, and the desire of the petitioner to adopt it, alleging the consent of the child’s parents or guardian to the act of adoption, and usually the child’s consent, if over fourteen years of age. A decree is made by the court on these facts, which judicially confers on the child the capacity or qualification to inherit, and other incidents of the status authorized by the statutes of the particular States Avhere the proceeding is had. This is a judicial procedure, involving the rendition of a judgment by the court by which the new status of the child is determined, and from which an appeal is usually authorized to some superior tribunal. This course is pursued in Massachusetts, Pennsylvania, Kansas, Illinois and other States. The other mode is the one now authorized in Alabama, Texas, California, Iowa, Vermont and-other States, which is intended to be more simple and inexpensive. It consists of a written instrument, declaration or statement, more in the nature of a deed than anything else, which is required to be executed, attested, acknowledged, and filed for record in the Pj’obate, or other court of cognate jurisdiction. There is nothing judicial connected with this simple procedure. Even the taking of the acknowledgment by the probate judge is purely a ministerial and not a judicial act. Halso v. Seawright, 65 Ala. 432. The maker or declarant is analogous to the grantor in an ordinary deed; the adopted child is the grantee, and the thing granted is the irrevocable right, capacity or qualification to inherit, or succepd to the property of the adopter, in case he should die intestate. This quasi deed is to be recorded, rather as a perpetual memorial of the fact of adoption than to subserve the purpose of constructive notice, as in the case of conveyances of property. — Ross v. Ross, 129 Mass. 243; s. c. 37 Amer. Rep. 321; Ballard v. Ward, 89 Penn. St. 358; Bancroft v. Bancroft, 53 Vt. 9; Ortiz v. DeBenavides, 61 Tex. 60; Pina v. Peck, 31 Cal. 359; Tyler v. Reynolds, 53 Iowa 146; Schouler on Dom. Rel. 314; 2 Kent. *212 et seq.

While these statutes authorizing adoption are in derogation of the common law, and for this reason are, in some respects, to be strictly construed, their construction can not be narrowed so closely as to defeat the legislative intent which may be made obvious by their terms, and by the mischief to be remedied by their enactment.

So much for the provisions and purposes of the statute, and the rule and analogies by which we are to be governed in its construction and application.

The declaration of adoption, with other accompanying papers, is set out in the bill in haec verba. It is signed by both J. N. Sanders, the intestate, and his wife, B. F. Sanders, and appears to be the joint and several act of each. It is attested by two witnesses, acknowledged, and filed for record with the probate judge of Monroe county, and was by him recorded, not “ on the minutes of his court,” but in a book kept by him for the recording of deeds and wills. The proceedings are in due form unless some one of the objections specially taken to them by demurrer is well taken. These we proceed to consider.

It is first objected that the written declaration fails to state the age of the child, this being left blank, This does not, in our opinion, invalidate the proceeding. If it be conceded that, contrary to the rule of the Boman law, no adult can be adopted under our • statute, and that it applies exclusively to minors — which we do not decide — the word “ child” used in describing the adopted would prima facie, at least, import an infant, or very young person, and the bill shows that the claimant in this case was over fourteen and under twenty-one years of age. The written declaration, moreover, sets forth his full name and sex, and describes him as the child of David Crockett Mims and Nancy Mims. Here is a complete identification of person beyond any reasonable possibility of mistake, accompanied by terms which indicate that the person adopted is a minor, under twenty-one years of age. This, we think is sufficient, and accomplishes every reasonable intendment which the law maker had in view. Jones v. Morris, 61 Ala. 518; Sewell v. State, 82 Ala. 57.

The further objection is taken that the acknowledgment of the instrument before the probate judge is fatally defective. No particular form of acknowledgment is given by the statute, but the obvious reference is by implication to the form prescribed for ordinary conveyances, which must be understood as being adopted for this class of cases. — Code, 1886, § 1802 (2158). The first defect insisted on is that the form in the record recites'that the declarants “being informed of the contents of the declaration,” acknowledged that “they execuied the same voluntarily on the day the same bears date.” The Code form reads that the signer acknowledged, that being informed of the contents of the conveyance, he executed the same voluntarily. There is no acknowledgment, it is said, that they were informed of the contents of the paper; only an acknowledgment that they executed it. This criticism is too severe and technical. The certificate of the officer that the declarants were informed, does not differ in substance from their acknoidedgment that they were informed— it being no uncommon thing for the officer himself to verify such information by personal instructions.

The other objection is that the form fails to show when the maker made the acknowledgment, the words “this day” following the words “appeared before me” in the Code form being omitted. It has long been the settled law in this State, as to deeds, that when such an instrument is acknowledged by the grantor on the day of its date it is a sufficient compliance with the statute, although the certificate of 'acknowledgment does not state that he acknowledged that he executed it on the day of its date. — Bradford v. Dawson, 2 Ala. 207; Carter v. Chaudron, 21 Ala. 72; Parsons v. Boyd, 20 Ala. 112; Harbinson v. Harrell, 19 Ala. 753.

The recital in the instrument that the makers were of “said county and State,” obviously has reference to the county of Monroe, which appears in its margin, and must be construed to have reference to the county of the makers’ domicil or residence. Such recitals in deeds and wills are ordinarily prima facie evidence of the fact of the declarant’s domicil or residence, liable to be rebutted by proof to the contrary. — Merrill v. Morrissett, 76 Ala. 433; Ennis v. Smith, 14 How. (U. S.) 400. The paper, therefore, shows prima facie a sufficient compliance with the requirements of the statute that it must be acknowledged by the declarant “before the judge of probate of the county of his residence.” Code, 1886, § 2367 (2745).

It is further suggested, as appears from the bill, that the declaration of' adoption was not “recorded on the minutes” of the Probate Court, as seems to be required by the statute. Section 2367 of the Code (1886) provides that the paper shall be “filed and recorded as in the two preceding sections,” and that conforming to the several requirements prescribed “has the effect to make such child capable of inheriting such estate of the declarant, and of changing its name to the one stated in the declaration.” But one of the two preceding sections (§ 2365) has any reference to the subject of filing and recording, and this provides that the written declaration, authorized to be made by the father of a bastard child for the purpose of legitimating it, after being properly executed and acknowledged, shall be “filed in the office of . the judge of probate, and recorded on the minutes of his court.”' — Code, § 2365. This inconvenient requirement seems to have been brought forward from the old statute found in Clay’s Digest (p. 135, § 9), where the declaration was required to be “filed in open court,” either probate or circuit, “and entered at full length of record,” analogous to the procedure in those States where adoption is effected by judicial decree. It appears that the paper was filed in the office of the judge of probate, but was not recorded “on the minutes of bis court.” It was recorded only in the book of wills and deeds. It is contended that the failure to record the instrument as required is fatal to its validity, because the statute in effect declares that when all these things are done the act of adoption is complete.

Admitting the correctness of the construction placed by appellants’ counsel on the phrase “recorded on the minutes of his court,” which seems to be severely literal, and against which much can be urged, the inquiry arises, does the neglect of the probate judge to do his duty, by properly recording the paper, operate to destroy its legal validity, when the maker and beneficiary have done all that the law requires of them to do, and which they possibly can do to perfect it ?

The purpose of recording such a paper can not be to give notice of the act of adoption, or of the rights acquired under it, to any one.' All it confers, as we have seen, is the capacity to inherit property. It does not affect the rights of creditors or subsequent purchasers in 'any respect. The only object had in view by this legislative requirement must have been to furnish some definite evidence of the fact that the transaction was genuine and in good faitK, and as a perpetual memorial of the fact that it is complete.

There being nothing whatever judicial in the proceeding, and all the formalities attending its execution, attestation and acknowledgment, being analogous to those in reference to deeds of conveyance, to say nothing of the rights acquired under it, we can perceive no sound reason why the same analogies do not apply in reference to the act of recording. Statutes are to be given a reasonable construction, and every construction leading to an absurdity is to be avoided as far as it is possible to do without perverting the clearly expressed legislative intent. The rule settled in this State more than fifty years ago, and uniformly followed since, is that the failure of a recording officer to discharge his duty by registering an ordinary conveyance, which has been filed with him for record, in proper time, does not invalidate the instrument, or impair the rights of the parties under it, oven as against subsequent purchasers. The case of McGregor v. Hall, 3 Stew. & Port. 397, cited by appellee’s counsel, is directly in point. The act of January, 1828, provided that “hereafter, all deeds and conveyances of personal property, in trust, to secure any debt, or debts, shall be rexiorded in the office of the clerk of the county court of- the county wherein the person making such deed or conveyance, shall reside, within thirty days, or else the same shall be void against creditors and subsequent purchasers without notice.” The mortgage in question was left in the proper office and with the proper officer, to be recorded, some four or five days before the thirty days had expired, but was not recorded until after the lapse of the thirty days required by the statute. The contention there, as here, was that there was no compliance with the statutory requirement, and that the statute made the conveyance void as to creditors, unless it was actually recorded. The court declared that to be governed by 1 the letter of the statute would defeat the legislative intention. The purpose clearly had in view, involving the motive of the law giver, which was to afford notice to creditors and subsequent purchasers, was rather to govern. It was said: “If the party in interest does all that he can to give such notice, especially if the act done be equivalent to the one required towards effecting that object, it would be wrong to injure him for the negligence of an officer, who has been regularly appointed, according to the laws of the land, for the purpose of discharging this duty, and may, therefore, be viewed, in some measure as chosen by the parties to the instrument legally deposited with him; for the especial purpose of putting them upon record.” The court declined to visit the negligence of the recording officer on the grantee, and held that the proper filing of the mortgage for record was a compliance with the statute, and made it operate as constructive notice to creditors although it was unrecorded.

This ruling was followed in Dubose v. Young, 10 Ala. 365, decided in 1846, Goldthwaite, J., observing as follows: “The decision made in McGregor v. Hall, 3 S. & P. 397, is conclusive, that the deposit for record is equivalent, so far as the question is connected with registration, to the recording of the deed.” These decisions were not based on any statute, but were afterwards carried into the Code of 1852, where the principle settled by them received legislative sanction by .the provision there made, that conveyances, required to be recorded.in the probate office are “operative as a record from the day of the delivery to the judge, and any one delivering a conveyance for registration, may require a receipt for the same, describing it by date, parties thereto, and property conveyed. — Code, 1852, § 1270; Code, 1886, § 1793. The statute itself is but a legislative adoption of the broad and just principle, that “when a party discharges a duty imposed by law, the omission or neglect of a public officer, in the discharge of a subsequent duty, shall not be invoked to his prejudice.” — Floyd v. Clayton, 67 Ala. 265; Halfman v. Ellison, 51 Ala. 543.

A person who searches for the discovery of papers required to be recorded is thus required not only to search the proper records, but also to ascertain whether any such paper has been filed to be recorded. We are of opinion that the rule declared in McGregor v. Hall, supra, is sound, and is applicable with great force, to the present case, where the failure to record the -paper could by no possibility operate to prejudice third persons. — Jordan v. Farnsworth, 15 Gray. 517; (Gen. Stat. Mass. 1860, p. 766); Dodge v. Potter, 18 Barb. (N. Y.) 193; People v. Bristol, 35 Mich. 28; Jones on Chat. Mortg. § 272.

Any other construction of the statute would lead not only to monstrous injustice, but to results little less than absurd. It would defeat the rights of the innocent beneficiary of the paper by many accidents, and even wrongful acts of the officer, for which there might be no remedy. The destruction of the paper by fire, or the purloining of it by an interested person, after delivery and before record, the intentional or fraudulent withholding or delay of its registration by the officer, a material error made in recording it, or the death of the maker during the progress of a mandamus proceeding to compel registration, with other like cases that would suggest themselves, might all be visited disastrously upon the adopted child, although entirely innocent of complicity in these various causes producing the failure of the registration officer to make the required record. We cannot believe that this was the legislative intent.

The cases of Tyler v. Reynolds, 53 Iowa, 146, and Shearer v. Weaver, 56 Iowa, 578, construing the Iowa statute on the subject of adopting children, and cited by appellants’ counsel, do not conflict with the views above expressed. That statute provided that “upon the execution, acknowledgment and filing for record of such instruments,” .the act of adoption should be complete. No question arose as to registration, for none was required by the statute. It was held that the failure to file the paper for record until after the death of the maker defeated the rights of the child, the adoption being incomplete without it. The filing was an act of the party interested. The recording is the act of an officer over whom the parties to the paper have no control. Those cases and this rest on entirely different principles.

But one other point remains for consideration. It is suggested in the bill that the adoption paper was signed by both John N. Sanders and his wife, and that the signature of the wife rendered it invalid as the joint act of both, a form of adoption which, it is said, is unauthorized by the statute. We do not think that a valid juridical act by one person can be rendered'invalid by the consent or signature of another. The most that can be urged is that the signature of the wife was mere surplusage. It could not vitiate the act of the husband, who was sui juris, and, as we have shown, who complied with every essential requisite of the statute in the proceeding by wbicb be sought to adopt the child named in the instrument of adoption.

We are of opinion that the demurrer to the bill was properly overruled, and that the decree of the chancellor must be affirmed.