Opinion
3 Div. 247.
April 21, 1938. Rehearing Denied May 19, 1938.
Appeal from Circuit Court, Escambia County; F. W. Hare, Judge.
H. C. Rankin, of Brewton, for appellant.
The declaration of adoption is valid. The minutes of the Probate Court affirmatively show that the declaration was acknowledged, and such fact cannot now be disputed or challenged. Abney v. DeLoach, 84 Ala. 393, 4 So. 757; Prince v. Prince, 188 Ala. 559, 66 So. 27; Prince v. Prince, 194 Ala. 455, 69 So. 906; Campbell v. Byers, 189 Ala. 307, 66 So. 651; Leath v. Cobia, 175 Ala. 435, 57 So. 972. An instrument is operative as a record from the day of delivery to the judge. If the declaration, duly acknowledged, was delivered to the judge of probate as the minutes recite, such delivery operated as a recordation of the declaration and the acknowledgment. Having been for ten years of record, it has the effect of being duly acknowledged. Code 1923, §§ 6856, 6860, 6876, 7699. The taking of an acknowledgment is a judicial act; and the order of the probate judge on filing of the declaration is of a judicial character. Orendorff v. Suit, 167 Ala. 563, 52 So. 744; Byrd v. Bailey, 169 Ala. 452, 53 So. 773, Ann.Cas. 1912B, 331; Moore v. Bragg, 212 Ala. 481, 103 So. 452; City of Talladega v. Jackson-Tinney Lbr. Co., 209 Ala. 106, 95 So. 455; Code, § 9581. Adoption statutes and proceedings are to be liberally construed. Cofer v. Scroggins, 98 Ala. 342, 13 So. 115, 39 Am.St.Rep. 54; 1 Am.Jur. 625, 626. The minute entry by the judge of probate should be given consideration, as an authorized act in conformity with reasonable rule and recognized practice. 15 C.J. 901; Cofer v. Scroggins, supra.
McMillan Caffey, of Brewton, for appellees.
When one claiming as an heir under an alleged adoption does not show the declaration of adoption was acknowledged as required by statute, he fails to show a legal right of inheritance. Code 1923, §§ 9300-9302; Prince v. Prince, 188 Ala. 559, 66 So. 27; Abney v. DeLoach, 84 Ala. 393, 4 So. 757; Cook v. Echols, 16 Ala. App. 606, 80 So. 680. No presumption will be indulged in favor of the regularity of adoption papers; all statutory requirements must be shown to have been complied with. O'Neal v. Tenn. C., I. R. Co., 140 Ala. 378, 37 So. 275, 1 Ann.Cas. 319; Prince v. Prince, supra. Nothing is presumed to be within the jurisdiction of a court of limited jurisdiction except that which is so expressly alleged and affirmatively appears from the record. Chamblee v. Cole, 128 Ala. 649, 30 So. 630; Alford v. Claborne, 229 Ala. 401, 157 So. 226. Before a record can be received in evidence to establish the truth of facts therein stated, it must be a record required by law to be kept, and the findings authorized by law. Messer-Johnson R. Co. v. Security S. L. Co., 208 Ala. 541, 94 So. 734; Gunn v. Howell, 35 Ala. 144, 73 Am.Dec. 484. The statement by the probate judge that the adoption paper was duly acknowledged is a mere conclusion of the officer as to the records, and is inadmissible in evidence. Bonner v. Phillips, 77 Ala. 427; Weil Bros. v. Southern R. Co., 21 Ala. App. 245, 107 So. 38. The curative statutes do not apply to adoption papers, and recording for ten years will not make valid an instrument that was invalid when made. Prince v. Prince, supra; Holloway v. Henderson Lbr. Co., 194 Ala. 181, 69 So. 821; O'Neal v. Tenn. C., I. R. Co., supra.
The sole question in this case involves the validity of the adoption of the appellant when a minor. If said adoption was valid, the decree would be erroneous and would have to be reversed. On the other hand, if the attempted adoption did not conform to the statute and was invalid, as held by the trial court, the case must be affirmed.
This case is almost identical with the case of Prince v. Prince et al., 188 Ala. 559, 66 So. 27, in that the declaration of adoption was not acknowledged as required by the statute. The only difference being that in the present case, while the declaration is set out and shows on its face that it was not acknowledged as required by the statute, there is a recital in the order of the probate judge that the declaration was acknowledged and it is urged that that was, in effect, a judicial determination that there was an acknowledgment.
The history of our statutes of adopting children as covered by sections 9300-9302 of the Code of 1923 and its predecessors is given in the well-considered case of Abney et al. v. De Loach, Adm'r, et al., 84 Ala. 393, 4 So. 757, and it was there held that the procedure there required was not judicial but purely ministerial. Therefore, the order or note of the probate judge following the filing of the declaration of adoption was not a judicial finding of the judge of probate which could supply a material omission from the declaration as set out, and which spoke for itself. No presumption will be indulged in favor of the regularity of adoption papers and the burden is on one claiming the benefit of same to establish by clear and convincing evidence that all statutory requirements have been complied with. Prince v. Prince, supra; O'Neal et al. v. Tennessee Coal, Iron Railroad Co., 140 Ala. 378, 37 So. 275, 1 Ann.Cas. 319.
True, the statute, as considered in the cases cited, was amended by the Act of 1911, page 114, appearing in section 9302, but the amendment relates to the annulment and not the adoption, and the action of the judge of probate as to the annulment may be judicial in its nature, but still seems to be ministerial as held in the De Loach Case, supra, as to the adoption.
The curative statute, as to recorded instruments, does not apply to adoption papers. Prince v. Prince, supra; Holloway et al. v. Henderson Lumber Co., 194 Ala. 181, 69 So. 821; O'Neal v. Tennessee Coal, Iron Railroad Co., supra.
The decree of the circuit court is affirmed.
Affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.