746 PARDO V. CREAMER. [228 PARDO V. CREAMER. 5-1465 310 S. W. 2d 218
Opinion deliyered February 24, 1958. 1. ADOPTION — COLLATERAL ATTACK BECAUSE OF FAILURE ;TO GIVE RESI-: DENCE OF CHILD BEING ADOPTED. Where neither the p etition nor the order or adoption, ma . cle under Act 28 of 1885, stntes that ihe Child being adopted is a reSident of the cOnnty, the Order is void find subjeet collateraf'atfack: . 'ADOPTION--COLLATERAi ATTACK ciF DECREE—HSTOPPEt. =thib stand-•ing in a ridsition of iSrivy to the adopting parent in w void adop-,. tion proceeding under Act 28 of 1885 held not estopped to assert , the invalidity of the proceeding. „ 3. ADOPTION,— CURATIVE , ACTS, ,EFFECT ON VESTED RIGHTS. — Curative provi , sion , s of Act ii08 of 1947 held na to affect title.to lands thnt vested before the effective (lite ' thereof. .. 4. ADOPTIONPETITION IN VOID PROCEEDINGS AS DESIGNATION OF HEIR-SHIP.L -Jurat on p'etifion for adOption of Child held ad insufficient acknowledgment to constftute w designation of . heirshiP under Ark. Stats., §§ 61-301 and 61-302. 5. ACKNOWLEDGMENT — JURAT DISTINGUISHED. — An aCknowledgment "is distingnished"frOm a jurat 'in that a"jurat is Wsimple'Statement that an instrument is sUbscribed and sworn 't•jr- affirined before a. proper officer Without the: further :statement that it:is the act or deed of the persoh making it. - :: . t 6. .ACKNOWLEDGMENT—CURATIVE ACT, EFFECT OF.—The curative pro-'Nfisidns of . Ark. Stats.,. § 29-213, Cle gigned th cakl e defective acknoWledgments, cannot supply an acknowledgment thep in fact thpre- gnly a jura t . . . ; Appeal frOth' MonrOe Chancery Court Ford Smith, Chancellor • affirined. • Daggett & Daggett and . Sherry) & Sharp, for appellant, John C. Sfieffield,' H. M. 11PcCastlain and Fred MacDonald, for appellee.
ARK.] PARDO v. CREAMER 747 , MINOR W. MILLWEE, AsSociate Justice...-This appeal involve's the validity. of .an . adoption •order made in . 1907 by the Probate „Court„ot Monroe ,County;.Arkansas,•,in which J.F. Linzey attempted,to adopt ,Vena Vista Allen, the Tour-year-old .daughter ,of his .wife, Alice. L. Linzey, by a •former marriage. The, order reads ..as follows Order of .Court: . Now on thi's' day' October '21st . 1907,- a ',day of .the regUlar OCtober 1907 : ter1n 'of the Monroe 'Probate . Court the above 'Matter . canie' oh to 'be heard iiPok . the' petition of the petitioner, J. F. Lindsay,' seeking' the' adoption .of the minor,.•Uena Vista Allen: It appearing to the court that said petition was in the• manner, and form as prescribed by law, and .duly verified, it further appeared to , the Court from the consent of the mother of said minor 'Who ;appeared in open court and was examined touching, said matter, that it is to the best interest of said child that she be adopted by the said J. F. Lindsay and henceforth bear: the name of -Buena :Vista Lindsay and shall occupy the same position in the household of the said Lindsay as a natural child would, occupy in the way of liability on part of petitioner for education maintenance, power and right to inherit and in every other wise-as a . natural child, and the Clerk.hereof will spread upon the record this order of the: , Court in full." The petition mentioned in the order was never recorded until July 1, 1957, and reads : "To the Hon. Probate Court of Monroe county, Ar-kansas, Hon. R. F. Millwee, Judge thereof, presiding:, ".Your petitioner, the. undersigned J. F. Lindsay, would most respectfully state and show unto your honor; that he is a bona fide resident of Monroe county, Arkansas, that he desired to , adopt to himself and to his name Buena Vista Allen, minor daughter of petitioner's wife ; that the age of said child is four years ; that 1 Petitioner's correct name is J. F. Linzey and the child's correct name is Vena Vista Allen.
748 PARDO V. CREAMER. [228 it has no property; that both its parents are living, its mother being the wife of petitioner, and its father, Alfred Allen is living at Monroe, Arkansas, the divorced husband, of petitioner's wife. Petitioner says upon his oath that said child was given to petitioner's wife upon her separation from the said Alfred Allen and that the sole purpose for which he seeks the adoption of said child is to the end that it may inherit of the estate of petitioner as his own children shall inherit and be entitled to all the rights and privileges that his own children bearing his own name enjoy or may hereafter enjoy. "Petitioner introduces into open court his wife, the mother of said child, to the end that she may show her consent to the said adoption. Respectfully submitted, (s) Geo. F. Chaplin Attorney for petitioner "I, J. F. Lindsay state upon my oath that the statements in the foregoing petition are true, to the best of my knowledge and belief. (s) J. F. Linzey "Subscribed and sworn to before me on this the 1st day of Oct. 1907. (s) W. L. Hinton County Clerk" When J. F. Linzey sought to adopt Vena Vista Al-len in 1907 he was married to the child's mother by a former marriage. The child lived with her mother and stepfather until her marriage to the father of James S. Wilson and died intestate about 1918, survived by the said James S. Wilson as her sole heir. J. F. Linzey died intestate in 1929 survived by his widow, Alice L. Linzey, and by appellee, Effie W. Creamer, his only natural child. Alice L. Linzey subsequently married one Mc-Pherson and was living on the lands involved in this litigation at the time of her death testate on June 20, 1956. After a bequest of $5.00 to appellee she bequeathed
ARK.] PARDO V. CREAMER 749 and devised the remainder of her property to James S. Wilson. On July 6, 1956, James S. Wilson brought the instant partition suit against appellee claiming they were tenants in common of J. F. Linzey's lands by reason of the adoption of his mother by J. F. Linzey in 1907. On • August 15, 1956, James S. Wilson conveyed his interest in the lands to the appellant, Valentine Pardo who was duly substituted as party plaintiff in the suit. The chancellor adopted appellee's contention that the order of adoption was, and is, void for want of jurisdiction, dismissed the complaint for want of equity and quieted appellee's title to the lands as against the claims of the appellant and James S. Wilson. Act 28 of 1885 was the statute governing adoptions when the instant order was made in 1907. It is noted that neither the order nor the petition upon which it was based stated that the child, Vena Vista Allen, was a resident of Monroe county at the time of the filing of the petition and the making of the order. These were the identical facts in the rather controversial but landmark case of Morris v. Dooley, 59 Ark. 483, 28 S. W. 30 and 430, where the court held that a proceeding in the probate court to adopt a child under the statute is a special statutory proceeding, not according to the course of the common law, nor in the exercise of the court's general jurisdiction; and that a judgment rendered therein is void upon collateral attack if neither the judgment nor the petition states that the child was a resident of the county. The 3 to 2 decision has been followed in many subsequent cases including Minitree v. Minitree, 181 Ark. 111, 26 S. W. 2d 101, where another divided court held that the failure of the formal order of adoption to state that the child was a resident of the county constituted a jurisdictional defect which rendered it void upon collateral attack. Vigorous and.eloquent dissents were written by Justice Riddick in the Dooley case and by Justice FRANK G. SMITH ill the Minitree case. The question arose again more recently in Dean v. Brown, 216 Ark. 761, 227 S. W. 2d 623, where this court
750 PARDO V. CREAMER. [228 in a unanimous decision said -in reference to the. DoOley case : "The correctness of the holding in that case is!not open to reconsideration by us at this time. , . There are .Many caSes of this C6urt WhiCh hold to 'be . :Void . orders of adoptinn sinillar to the' one at bar 'when the order failed' to reeite the .. residence Of the • minOrl The base of korris V: Dooley is 'directlk j.n- point, arid -We &Cline to overinle it ;'. so We hbld - that the' purported 'order . of adoption made by . the • Garland Probate Court in 1911 iS void 'on this collateral attack, becan'se neither the order, 'nor the petition, Showed that the • minor;' . Nettie BOnd, was a • 'resident of Garland . County, - Arkansas, at the time the order was'made."' See also, Binnk v. Merchants . National Bank, Ex ' ecutor, 217 Ark: 499, 230 S. W. 2d 932: • . Appellant earnestly contends : (1) That appellee, being in privk with J. F. Linzey, the adopting patent in the 1907 proceedings, is bound by and now estopped to attack the order ; (2) -that. in granting the order a presumption ar6Se a8 to . the :existenee of ihe jurisdiction of the Probate -Cd-tirt conCerning . its • validity; and (3) that the adoption statutes should be . most liberally construed in favor • ,of the adopted child and sO ns to preclude a holding in favor of appellee. These propositions were ably urged by tiie dissenting justices but rejected by the majority in the DOOLEY and MINITREE cases. We still decline to dverrule those cases, and conclude that the 1907 adoption order is void for lack of jurisdiction. Since title to the lands in question vested in appellee upon the death of J. F. Linzey in 1929, subject to the widow's life, estate, appellant is entitled to no relief under the curative .provisions of Act 408 of 1947. Dean v. Brown, supra. Appellant also contends that the petition for adoption and its recordation constituted a declaration of heirship by J. F. Linzey in favor of Vena Vista Allen so as to make her one of his heirs at law under Ark. Stats. Secs. 61-301 and 61-302. 2 It first should be noted 2 "Sec. 61-301. Declaration—Acknowledgment.—In all cases hereafter, when any person may desire to make a person or persons his or her heirs at law, it shall be lawful to [do] so by a declaration in writing in favor of such person or persons, to be acknowledged before any
ARK.] PARDO V. CREAMER. 751 that the petition was not recorded as required by the second section of the statute until many years after title to the lands in question had already vested in appellee. J . F. Linzey did:not execute or sign the petition nor did he acknowledge that 4e had done so, but only executed a jurat verifying the instrument. An acknowledgment is a formal declaration or achniSsion before an au-: thorized Public officer . by a person who has executed an instrnment that such instrument his Act. and, deed., It is distinguished from a jurat in that a ,jurat is a simple statement that an instrument is •snbscribed--and-sworn to or affirmed before a proper officer without the further Statement that . it is•the aet'Or deed a . th:person' making it-. 1; C. J. S:, rAcknowlediinentS, :See.: Jemism v. , Howell, 230 Ala. 423, So:‘ ,806, anti other cases Cited in -Vor. 1, L. Vords & Phrases, 620. -Nor can the' ProvisiOns. Of Ark.' StatS.-3, Sec: i 4g-, 212, designed to cure defective acknowledgMents: be held to'Sitri ply an acknowledgment when in fact . there is none. ..lack-sofi.'HitAixth, 208 Ai . V. 55, '18f S: 'NV: 2d 906.— HLinzey , was 'AU -meijely c seking `4o rdedaro the — chifd heii the 'hi-stanf ptodeeding. flis dlear intent was t-tO declare' -heti!' ant t heir proVideci l the dould' alloi)t her a-t§[ his):own -6hild;i: hut this attenipt "failed:.fdr the reason§ g ready Statdd:'' :Under thel :eircnnistanceS we cannot agree there has • booti , SUffioient :cOnipliance' with the, statn, te,in quespon to make .; the ehild one pf his heifs ,at law • 1 • • The : de. df0 i8' • , judke, juStice of the peace, Clerk of cOUrt, or'befOre arlY co'iut of record.:in 'this State." ;; .f-. ; '•!c , •-• : -.• • ••• "Sec. 6 . 1-302_ gecQ , rding of . declaration. Before said .declaration• Sha o ll f be ' 'anY ferce eTfect; . it Shall be i-eeorded 'in the. caintY' Where' the, said; declarant may rreside,..cor_ jim i thA :county wheTe the, person whose favor such declaration iS made, may 'reside." * .1: t •• • • ".t : • 7:: ■• 1. 't • ! 7 . ,
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.