(148 N.E.) the brothers and sisters of deceased. A de-, bard, 38 Idaho, 451, 221 P. 1107. Our statcree was entered denying the prayer of the bill, and this writ of error is prosecuted to review that decree. [1, 2] Where the parents of a child are living and there has been no proceeding in court depriving them of the custody of their child, there can be no valid decree of adoption entered unless a verified petition be filed in the circuit or county court of the county in which the person or persons seeking to adopt the child reside or where the child is found, stating (1) the name, sex, age, and residence of the child; (2) the name and residence of the person having the custody of the child; (3) the name and residence of the parents of the child; (4) if the name and residence of any of such persons are not known, the fact that they are unknown; and (5) one or more causes or conditions prescribed by the statute as prerequisite for granting of the decree. Where, as in this case, both parents are living and have not been deprived of the custody of the child, and the child is under 14 years of age, no valid decree of adoption can be entered until the petition states and the court finds (1) that the parents consent to the adoption, or (2) that one parent consents and the other is unfit to have the custody of the child, or (3) that both parents are unfit, the grounds of unfitness being (a) depravity, (b) open and notorious adultery or fornication, (c) habitual drunkenness for the space of one year prior to the filing of the petition, (d) extreme and repeated cruelty to the child, (e) abandonment of the child, or (f) desertion of the child for more than six months next preceding the filing of the petition. The parents must be made defendants to the petition by name and must be notified of the proceedings by summons if residents of the state, the summons to be made returnable at any time within 20 days after its date, or if nonresidents or their residence be unknown, by publication once in some newspaper of general circulation published in the county. If service be by publication, the notice must bear the date of publication and must notify the defendant that he must answer within 20 days after such date. ute having provided specifically the means by which one sustaining no blood relation to an intestate may inherit his property, the rights of inheritance must be acquired in that manner and can be acquired in no other way. Shearer v. Weaver, 56 Iowa, 578, 9 N. W. 907. In Ex parte Clark, 87 Cal. 638, 25 P. 967, it is said: "A child by adoption cannot inherit from the adopting parent unless the act of adoption has been done in strict accordance with the statute. No matter how persuasive may be the equities of the child's case, or how clear the intention of all parties, it must appear that the statutory conditions have been strictly performed, otherwise the relation never existed, and the right to inherit never was acquired. The right of adoption is purely statutory. It was unknown to the common law, and as the right when acquired under our statute operates as a permanent transfer of the natural rights of the par-` ent, it is repugnant to the principles of the common law, and one who claims that such a change has occurred must show that every requirement of the statute has been strictly complied with. It cannot be said that one condition is more important than another." [6-10] The attack made on the proceedings to adopt the child being collateral, the only inquiry proper to be made is whether the county court had jurisdiction to enter the decree. Before the decree can have vitality the court must have jurisdiction of the subject-matter and of the person. Rabbitt v. Weber & Co., 297 Ill. 491, 130 N. E. 787. Where a court is exercising a special statutory jurisdiction, the record must show upon its face that the case is one where the court has authority to act. Jurisdiction in such cases is never presumed, and if it does not appear the judgment will be void and subject to collateral attack. Rice v. Travis, 216 Ill. 249, 74 N. E. 801; Payson v. People, 175 Ill. 267, 51 N. E. 588; Haywood v. Collins, 60 Ill. 328. Whatever the rank of the court exercising a special statutory jurisdiction, it is governed by the same rules as courts of limited jurisdiction. Calkins v. Calkins, 229 Ill. 68, 82 N. E. 242; Chicago & Northwestern Railway Co. v. Galt, 133 Ill. 657, 23 N. E. 425, 24 N. E. 674; Johnson v. Von Kettler, 84 Ill. 315. In Kennedy v. Borah, 226 Ill. 243, 80 N. E. 767, we said: "The jurisdiction of county courts to entertain a petition for the adoption of a child and to declare such child to be the adopted child of the petitioner and capable of inheriting his or her estate is a special statutory one unknown to the common law, and falls within the rule that nothing is presumed to be within the jurisdiction of the court which does not appear to be within the same." [3-5] The right to adopt a child and the right of a person to be adopted as the child of another was unknown to the common law. It was taken from the civil law and introduced into this country by statute. The adoption proceeding being statutory, the validity of a decree of adoption depends upon the compliance with every essential requirement of the statute authorizing it. In re Sharon's Estate, 179 Cal. 447, 177 P. 283. Being in derogation of the common law, the statute conferring the right of adoption must be [11, 12] In order to give the court jurisstrictly construed. Watts v. Dull, 184 Ill. 86, diction of the subject-matter it was neces56 N. E. 303, 75 Am. St. Rep. 141; Keegan sary that a petition conforming to the rev. Geraghty, 101 Ill. 26; Vaughan v. Hub-quirements of the statute be filed. Kennedy v. Borah, supra; Watts v. Dull, supra; Taber | 98, 87 Am. Dec. 293. The statute requires v. Douglass, 101 Me. 363, 64 Atl. 653. The that defendants, who reside outside the state petition filed in this case did not state that or whose residence is unknown, shall be nothe parents, or either of them, consented tified of the proceeding by publication of to the adoption of their child by the peti- an adoption notice, which shall be published tioners, or that the parents, or either of once and dated the day of publication. The them, was unfit to have the custody of their notice in this case was published on three child for any of the reasons stated in sec- different dates and bore a date different tion 3 of the Adoption Act (Smith-Hurd from all these dates of publication. The Rev. St. 1923, c. 4). Section 2 of the act last date of publication was March 16, 1916. specifically requires that the petition shall Twenty days after the date of this publicastate one or more of the conditions which tion was April 5, and therefore the father, section 3 requires shall be found before an David Rhydderck, was not in default March adoption can be decreed. The petition not 27, when the default decree was entered. only fails to state the necessary facts to confer jurisdiction upon the court, but it states a fact that shows conclusively that the court could not, under the law as it now exists in this state, acquire jurisdiction of the subjectmatter. It appears from the petition that the mother of the child is living and is insane. Being non compos mentis she could not consent to the adoption of her child, nor could she be guilty of any of the offenses which would render her unfit to have the custody of her child. Whether the law should permit the child of an insane person to be taken from him and given to another by adoption is a question for the Legislature to decide. To date no provision has been made for such a proceeding, and it follows that none can be had. Since the court had no jurisdiction of the subject-matter, its order is void and is not the foundation of any right. Bartholow v. Davies, 276 Ill. 505, 114 N. E. 1017. [13-15] The decree is also void for the reason that the court did not have jurisdiction of the person of the father or the mother of the child. People v. Seelye, 146 Ill. 189, 32 N. E. 458; Carter v. Botts, 77 Kan. 765, 93 P. 584. The Adoption Act requires that the resident defendants shall be notified of the proceedings by summons, which shall be made returnable at any time within 20 days after the date thereof. The summons issued for Ellen R. Rhydderck was dated March 1, 1916, was served 3 days later, and was made returnable 27 days after its date. As the statute required the summons to be made returnable within 20 days after its date, the clerk had no authority to make it returnable 27 days after its date. The writ must therefore be regarded as a nullity, and the service of the writ conferred no authority upon the court to render a decree in the cause which would bind the mother of the child. Schmitt v. Devine, 164 Ill. 537, 45 N. E. 974; Culver v. Phelps, 130 Ill. 217, 22 N. E. 809; Rattan v. Stone, 3 Scam. 540. Where the record shows that notice was not given as required by law the court does not acquire jurisdiction of the person. Forrest v. Fey, 218 Ill. 165, 75 N. E. 789, 1 L. R. A. (N. S.) 740, 109 Am. St. Rep. 249; Clark v. Thompson, 47 Ill. 25, 95 Am. Dec. 457; Johnson v. Baker, 38 Ill. [16] It is contended by the guardian ad litem appointed by the court to represent the child in this proceeding, that the adoptive mother and the heirs of the adoptive father are estopped from asserting the invalidity of the adoption proceedings. The decree of the county court declaring Thomas John Rhydderck to be the adopted child of James W. and Ruth B. Keal, being entered without jurisdiction of the subject-matter or of the persons of the defendants to the petition, is coram non judice and is subject to attack by any person at any time. Bartholow v. Davies, supra; Rice v. Travis, supra; Haywood v. Collins, supra. It is clear that there is no estoppel by judgment, and the question remains whether there is an estoppel in pais. [17-20] To be binding, estoppels must be mutual. Chicago & Alton Railroad Co. v. Keegan, 152 Ill. 413, 39 N. E. 33; City of Houston V. Southwestern Bell Telephone Co., 259 U. S. 318, 42 Sup. Ct. 486, 66 L. Ed. 961. An estoppel must bind both parties, and one who is not bound by it cannot take advantage of it. First Nat. Bank v. Northwestern Nat. Bank, 152 Ill. 296, 38 N. E. 739, 26 L. R. A. 289, 43 Am. St. Rep. 247; Mills v. Graves, 38 Ill. 455, 87 Am. Dec. 314. This rule has been applied to an adoption proceeding. Furgeson v. Jones, 17 Or. 204, 20 P. 842, 3 L. R. A. 620, 11 Am. St. Rep. 808. In general, the doctrine of estoppel in pais has no application to infants. Wieland v. Kobick, 110 Ill. 16, 51 Am. Rep. 676; Schnell v. City of Chicago, 38 Ill. 382, 87 Am. Dec. 304; Cobbey v. Buchanan, 48 Neb. 391, 67 N. W. 176. Since an infant is not directly bound by his ordinary contracts unless ratified after he becomes of age, all obligations in the nature of contract will not be indirectly enforced against him by means of an estoppel created by his conduct while still a minor. 2 Pomeroy's Eq. Jur. (4th Ed.) § 815. There is an exception, however, to the rule that the doctrine of estoppel in pais is inapplicable to infants. Lewis v. Van Cleve, 302 Ill. 413, 134 N. E. 804. An infant is liable, when properly sued, for his tort in an action which does not seek the enforcement of a contract or demand damages for repudiating or for fraudulently inducing the plaintiff to make a contract. To prevent a circuity of ac (148 N.E.) missible to show consideration for deed, where effect would be to vary obligation of written covenant. Though parol evidence may be introduced to show that true consideration for deed was different from that named in instrument, rule is inapplicable, where result would have effect of cutting down or varying obligations of written tion, which is the ground of many estoppels, 2. Evidence 419(2) Parol evidence inadit is held that an infant of years of discretion should be estopped when proceeding to regain possession of an estate when he by his conduct encouraged a purchaser to buy the estate of another without asserting any claim to it. Bigelow on Estoppel (6th Ed.) p. 627. There is nothing in this case, however, which brings the infant, Thomas J. Rhydderck, within the exception noted, or any other exception to the rule with which we are familiar, that the doctrine of estoppel in pais is inapplicable to infants. Since the doctrine of estoppel is inapplicable to the child and the element of mutuality is wanting, the doctrine has no application to the facts in this case. The decree is reversed, and the cause is remanded to the circuit court of Douglas county. Reversed and remanded. FARMER, STONE, and HEARD, JJ. (dissenting). We do not agree with the opinion of the court. It is in direct conflict with former decisions of this court, and while the opinion does not expressly mention them, it overrules them all upon the question of collateral attack upon a decree of adoption. These are: Barnard v. Barnard, 119 Ill. 92, 8 N. E. 320; Kennedy v. Borah, 226 Ill. 243, 80 N. E. 767; Sullivan v. People, 224 Ill. 468, 79 N. E. 695; Van Matre v. Sankey, 148 Ill. 536, 36 N. E. 628, 23 L. R. A. 665, 39 Am. St. Rep. 196; In the Matter of Bohn, 308 Ill. 214, 139 N. E. 64; Hopkins v. Gifford, 309 III. 363, 141 N. E. 178. It seems to us stability in the repeated decisions of this court is of great importance, and only an extreme case, if any, would justify departure from a rule of 40 years' standing. (317 I11. 227) HAGEN v. LEHMANN et al. (No. 16589.) (Supreme Court of Illinois. April 24, 1925. 1. Covenants 100(3) — Unpaid installments of special assessments held due and payable at time of execution of warranty deed. In view of Cities and Villages Act, par. 167, providing that special assessments may be divided into installments, and that first installment shall be due and payable on 2d day of January of each year, and paragraph 193, fixing time when installments become delinquent as 1st day of August, held that, under a warranty deed executed on March 22, 1923, installments of special assessments which were unpaid at time of execution of deed were due and payable prior to March 22d, and were not "unpaid installments" which fell due after such date, and which conveyance was made subject to. covenant. 3. Evidence 441 (8)-Parol evidence of alleged agreement held inadmissible, where effect would be to vary and cut down written contract and covenants of deed. Where defendants by warranty deed covenanted against installment of certain special assessments, their failure to pay such assessments constituted a breach of covenant, and they could not prove by parol evidence alleged agreement that plaintiff agreed to pay such spe cial assessments, as effect would be to alter and cut down written engagement and covenants of the deed. Appeal from Second Branch Appellate Court, First District, on Appeal from Municipal Court of Chicago; Harry Olson, Judge. Action by Oscar C. Hagen against Edward J. Lehmann and another. From a judgment of the Appellate Court for the First District, affirming a judgment in favor of plaintiff, defendants appeal. Affirmed. Butler, Lamb, Foster & Pope, of Chicago (Beverly B. Vedder and Allan J. Carter, both of Chicago, of counsel), for appellants. Rathje, Wesemann, Hinckley & Barnard, of Chicago, for appellee. HEARD, J. This is an appeal from a judgment of the Appellate Court for the First District, affirming a judgment of the municipal court of Chicago for $3,651 in favor of appellee against appellants. The statement of claim filed by appellee alleged that on March 22, 1923, appellants conveyed by warranty deed to appellee certain real estate in the city of Chicago. This deed was the statutory form of warranty deed, and recited that "for and in consideration of the sum of $150,000 in hand paid" appellants conveyed and warranted the property to appellee. The deed also provided: "This conveyance is made subject to all taxes and assessments levied after the year 1922 sessments for improvements not yet completed, and to any unpaid special taxes or special asand to unpaid installments of special assessments which fall due after this date, levied for improvements completed." The statement of claim alleged that certain specified special assessments were liens upon the real estate, and that four installments of these special assessments, represented by warrants, fell due prior to the date of the deed and that the improvements for which the assessments were levied were For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes completed prior to that date. Appellee by the same act provides that in cities having a this suit sought to recover from appellants population of 100,000 or more the person the amount of these special assessment warrants, which he paid. Appellants filed an affidavit of merits and thereafter an amended affidavit of merits, in which it is alleged that at the time of the making of the deed appellee had full and complete knowledge of the fact that the installments of assessments covered by the warrants for which suit was brought had not been paid; that appellee had in his possession at that time the warrants for which he now seeks recovery, which warrants showed that they had not been paid. It further alleged that at the time of the making of the deed it was understood and agreed between the parties that the phrase in the contract reading, "and to unpaid installments of special assessments which fall due after this date, levied for improvements completed," should include the installments for which the suit was brought, and that such installments fell due after the making of the deed, on July 31, 1923. The affidavit of merits further alleged that as a part of the consideration mentioned in the deed, and as an inducement made by appellee to appellants at the time of the making of the deed, appellee undertook and agreed to pay the unpaid installments of special assessments represented by these warrants, and that it was understood that the unpaid installments should be paid by appellee after March 22, 1923, and before August 1, 1923, without any claim for allowance or reimbursement from the appellants. On motion of appellee the amended affidavit of merits was stricken, and, upon the election of appellants not to plead further, judgment was entered in favor of appellee against appellants for the full amount shown by the affidavit of claim. charged with the collection of installments of special assessments shall make report, in writing, to the county collector of the county on or before the 1st day of August in each year. The language of paragraph 167 is couched in plain and unambiguous terms, leaving no room for any other construction than that the installments in question were due and payable prior to March 22, 1923, and that they were not "unpaid installments of special assessments which fall due, after this date, levied for improvements completed." The time when the installments became due and payable is fixed by paragraph 167, while paragraph 193 fixes the time when they became delinquent. [2] It is contended by appellants that the true consideration for a deed may be shown by parol evidence, and that for this purpose they had a right to show that appellee actually agreed to pay an existing incumbrance on the property as a part of the consideration for the conveyance. It is true, where the issue is as to the amount of consideration for a deed, that parol evidence may be introduced to show the true consideration although it may be different from that named in the instrument. Brosseau v. Lowy, 209 Ill. 405, 70 N. E. 901; Lloyd v. Sandusky, 203 Ill. 621, 68 N. E. 154. This rule, however, is a general rule, and one which has exceptions, one of which exceptions is that it can never be applied where to do so would result in the introduction of parol evidence which would have the effect of cutting down or varying the obligation of the written covenant. Redmond v. Cass, 226 Ill. 120, 80 N. E. 708; Russell v. Robbins, 247 Ill. 510, 93 N. E. 324, 139 Am. St. Rep. 342. There is no conflict in the rules laid down in the four cases above [1] Appellants' first contention is that un-cited. der the statutes of Illinois the installments [3] Appellants by their warranty deed of special assessments for the nonpayment | covenanted against the installments of the of which the suit was brought under the cove special assessments in question, and their nants of warranty in the deed were payable failure to pay those assessments constituted at any time between January 2, 1923, and a breach of their covenant. It was thereJuly 31, 1923, and would not fall due until fore not competent for them to prove the July 31, 1923. The Cities and Villages Act agreement alleged in the affidavit of merits, of this state (Cahill's Stat. par. 167) provides as the only effect of such proof would be to that the cost of improvements which is to be alter, vary, and cut down the written endefrayed by special assessments may by or-gagement and covenants of the deed. Linn dinance be divided into installments, not v. Clark, 295 Ill. 22, 128 N. E. 824. The more than 10 in number, and that "the first installment shall be due and payable on the second day of January next after the date of the first voucher issued on account of work done, and the second installment one year thereafter, and so on annually until all installments are paid." Paragraph 193 of court therefore properly struck the affidavit of merits from the files and rendered judgment for appellee after appellants' election not to plead further. The judgment of the Appellate Court is affirmed. Judgment affirmed. right of action for injuries of minor illegally employed not affected by his negligence. 8. Courts 219(8)—Appellate Court may not retain jurisdiction and affirm judgment on one ground, without reference to constitutional question involved in another ground urged by appellee in support of judgment. Appellate Court may not retain jurisdiction and affirm judgment on one ground, without reference to constitutional question involved in another ground urged by appellee in support of judgment. 9. Appeal and error ~878(4)—Appellee held properly to have raised constitutional question in Appellate Court by assigning crosserrors involving question of validity of statutes. Appellee held properly to have raised constitutional question in Appellate Court by asCommon-law right of action for injuries, signing cross-errors involving question of validas distinguished from an action under the ity of statutes, a decision on which was not esWorkmen's Compensation Act, of minor illegal-sential to sustain the judgment in his favor unly employed under child labor statutes (Laws der the view taken by both the trial court and 1897, § 6; Laws 1917, § 10), in an extrahazard- the Appellate Court. ous business within Workmen's Compensation Act, § 3, is not affected by his negligence. 7. Appeal and error 878 (4)-Appellee, in seeking to sustain in Appellate Court judgment of trial court, not limited to grounds on which judgment of trial court was based. Appellee, in seeking to sustain in Appellate Court judgment of trial court, is not limited to grounds upon which the judgment of trial court is based, but may urge in good faith any number of questions in support of the judgment. 10. Courts 219 (8)-Mere assertion that constitutional question is involved is not sufficient to raise constitutional question. Mere assertion that constitutional question is involved is not all that is required to raise constitutional question. 11. Courts 219 (8)-To raise constitutional 12. Courts 219 (8)-Appellate Court had no jurisdiction to retain and decide case, record of which presented constitutional question, and its judgment was void. Appellate Court had no jurisdiction to retain and decide case, record of which presented constitutional question, and its judgment was void. 13. Appeal and error 20-Supreme Court cannot review judgment which Appellate Court had no jurisdiction to render. Supreme Court cannot review judgment which Appellate Court had no jurisdiction to render. 14. Appeal and error 782-That judgment of Appellate Court, appealed from to Supreme Court, was void for want of jurisdiction, held not to require dismissal of appeal by Supreme Court. That judgment of Appellate Court, appealed from to Supreme Court, was void for want of jurisdiction, because constitutional question was involved, held not to require dismissal of appeal by Supreme Court; under such circumstances it being proper to reverse and set aside the judgment of the Appellate Court, and to remand the cause to it, with directions to transfer the case to the Supreme Court. Appeal from Third Branch Appellate Court, First District, on Error to Superior Court, Cook County; Edward D. Shurtleff, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |