(dissenting).- — -My disagreement with the conclusions of the majority is based upon the construction of our statute of adoption. The majority say that it should have a liberal construction, and that the provisions thereof are directory; while I contend that it should have a strict construction, and that the provisions are mandatory. I concede a difference of opinion in the courts of the country upon this proposition, and it would not be strange, I think, to find a divergence of view among the members of this court, were the question a new one. But as I think the majority are overturning a well-settled rule of construction for this State, and are overruling many of our previous cases, some of which involved rules of property, I am constrained to register my dissent and regret over this late departure from what has heretofore been regarded by the courts and the profession as a well-settled rule, no matter whether property or other rights were involved. The issue is a narrow one. Shall the statute have a strict construction, and be regarded as mandatory, ■or the contrary? Our own cases give no uncertain answer •to this proposition, and it is not a sufficient rejoinder to my mind to say that in none of them was the omission from the articles the same as in this case. There is but one guide '.in the determination of these matters, and that is, how shall the statute be construed ?
The Legislature has expressly státed what the articles *475shall contain, and, so far as the courts are concerned, one provision is quite as important as another. We should not say that one provision is “ essential ” and another a “ nonessential.” When the Legislature speaks, the court must give heed, and, if one provision of the law may be omitted,so may another, and, finally, we shall have no guide save the arbitrary discretion of court or judge as to what is an essential or nonessential. In Long v. Hewitt, 44 Iowa, 363, it is said in effect, in speaking of our statue of adoption, that the provisions thereof must be followed, and that a court of equity cannot aid the defective execution of articles of adoption. In Tyler v. Reynolds, 53 Iowa, 146, it is said:
The right of inheritance is purely a statutory right, and is therefore arbitrary, absolute, and unconditional. Nevertheless, the provisions of the statute must prevail, although to do so in some instances is inconsistent with our views as to what constitutes natural rights or justice and equity. Therefore, a child by adoption cannot inherit from the parent by adoption, unless the act of adoption has been done in strict accord with the statute. The statutory conditions and terms are that the written instrument must be executed, signed, acknowledged, and filed for record. When this is done, the act is complete. If the named requisites are not done, then the act is not complete, and the child cannot inherit from the parent by adoption. The filing for record is just as important in a statutory sense as the execution or acknowledgment; one may be dispensed with as well as the other, for the right depends solely on the statute. There is no room for construction, unless we eliminate words from the written law, and this we are not authorized to do. It was held in Long v. Hewitt, 44 Iowa, 363, that the execution of the required writing could not be dispensed with. The equities in that case were as persuasive in favor of the child as in this, and the intention to adopt was equally clear in both .cases. The statute cannot be regarded as directory, because a right is thereby disclosed which did not previously exist. The descent of property is thereby changed; to be done, however, only upop a compliance with the terms and conditions declared. It is not material that plaintiffs had notice that such an instrument in writing had been executed prior *476to the death of Philo Reynolds, simply because the statute does not- so provide. The filing for record and the actual recording is not required for the purpose of giving constructive notice of the act of adoption, so that the rights of others or of either party may be better protected, for neither the natural parent, the child, or parent by adoption, or. the natural heirs of the latter, acquire or part with any right by the act of adoption which would be in any degree changed by actual or constructive notice. The rights acquired under conveyances of real estate and similar instruments are different. Such rights do not depend .on a statute. They are good between the parties if never recorded or acknowledged. This is the ground upon which the ruling in Tucker v. Tilton, 55 N. H. 223, is based. In that case it is held that an unrecorded mortgage of personal property is valid against a person having actual notice thereof, although the statute declared it was of “ no effect against any one but the grantor and his heirs, unless verified by affidavit and recorded.” The only object of recording such an instrument was to give to the world constructive notice of its contents. This was not required if the party to be affected thereby had actual notice.
In Gill v. Sullivan, 55 Iowa, 341, this court, speaking through Rothrock, J., directly approved the Tyler case, supra. In Shearer v. Weaver, 56 Iowa, 578, the court, speaking through Day, J., said:
Onr statute makes full and explicit provisions as to the descent of property, and prescribes the person who may take by descent. The rights of inheritance existing between parent and child by lawful birth are by statute conferred upon parent and child by adoption. Code 1873, section 2310. In our opinion of rights inheritance cannot be conferred by parol agreement. Our statute having provided specifically the means whereby 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.
In McCollister v. Yard, 90 Iowa, 621, this .court said:
*477Now, by the express terms of the statute, adoption is not completed until the instrument of adoption is executed, acknowledged, and filed for record. Until all these things are • done, there is no adoption. It matters not that some of the requisites of the law are complied with, if others are ignored. A compliance with all is essential to fix the status of the parties as parent and child by adoption. Now, if, as we have seen, no one but a minor can be adopted, and if adoption can only be accomplished by the performance of certain acts, it follows that these acts must be performed, and the relations of the parties as parent and child by adoption fixed and established during the period in which the,subject of the adoption is capable, under the law, of being adopted. In other words, all the acts necessary to effect an adoption must be done during the minority of the child sought to be placed in this new legal relation. It seems to us that any other holding would not only be a clear departure from the requirements of the statute, but would, in effect, make the adoption of a child a matter largely resting in the court, without restraint. Thus, if we say that an adoption is complete where the article, though executed during the minority of the child, is not filed until afterward, why may we not properly hold that it would also be effectual if the article of adoption related to one who, at the time- it was entered into, was an adult?
In Hopkins v. Antrobus, 120 Iowa, 21, the court, speaking through Weaver, J., said:
Most of the cases which have come before us under this statute have turned upon the question of the necessity of recording the deed, and in each instance we have held that, without such recording during the minority of the child and lifetime of the person adopting it, the deed is unavailing. Now, the provision requiring the recording of the instrument is no more imperative than the one which declares that the parent lawfully having possession of the child shall consent “ by statement in writing ” to the adoption, and shall (in writing) “ state also that the child is given to the person adopting for the purpose of adoption as his own child.” As the natural guardian of the child, entitled to its care, the consent of the parent to a surrender of Such right is prop*478erly ma’de a prominent and explicit requisite to the validity of an adoption, and the requirement that it be expressly embodied in the writing is eminently wise. Reading the instrument before us, it appears to be wholly without any words which we can construe as meeting this demand of the statute. The declaration of the writing is that William Miller hereby adopts Hattie Rosser, minor child of Virginia Rosser and “H. C. Ohrt, county judge, hereby consents to this act of adoption.” Now, as the mother, then a divorced woman, is shown by the record to have been “ the parent lawfully having the care of the child,” the consent of no other person or officer was necessary to the adoption, and the joining of the county judge in the deed and his consent to the adoption were of no legal effect. The deed must therefore be. construed the same as if the name and consent of the county judge were stricken therefrom. We have left, then, simply a writing in which Mr. Miller undertakes to adopt the plaintiff and confer on her the privileges of a child born to him, but in which instrument the mother takes no part whatever, save to sign and acknowledge it. Nowhere in the writing does she express her consent to the act, and nowhere does she say that she gives the child to Miller for the purpose of adoption. It is possible that these two declarations of consent and gift might be treated as tautological, and that, if either was clearly expressed, the absence of the other would not necessarily be a vital defect; but to say that a deed of adoption barren of both may be upheld is to nullify the statute. If this were an ordinary contract, or the rights now claimed by appellee were such as might exist at common law or independent of the statute, it might be well said that the mother’s consent would be implied from the mere fact that she signed and acknowledged the instrument; but we cannot, by implication, supply a stipulation which the statute says must be stated in express written words.
See, also, Hilpire v. Claude, 109 Iowa, 164; Bresser v. Saarman, 112 Iowa, 723.
The rationale of this rule can easily be gathered from a brief reference to authorities from other states; and a consideration of these cases also shows that we are not alone in the positions we have assumed, and that there is no good rea*479son for departing from our former rule. Mr. Tiffany, in liis work on Persons and Domestic Eelations, thus states the reasons for the rule of strict construction; “ As the right to adopt depends entirely upon the statute, its provisions must be strictly complied with.” See page 222 of his work. In Sarazin v. Railroad Co., 153 Mo. 479 (55 S. W. 93) it is said: “ Adoption is in derogation of the common law and purely of statutory enactment, and, like all other similar statutes, must be strictly complied with.” The Supreme Court of Missouri in this opinion quotes with approval from the Supreme Court of California in Ex parte Clark, 87 Cal. 638 (25 Pac. 967), wherein it is said: “ 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 parent, it is repugnant to the principles of the common law, and one who claims that such 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.” The Missouri court also cites Tyler v. Reynolds, 53 Iowa, 146; Shearer v. Weaver, 56 Iowa, 578; Keegan v. Geraghty, 101 Ill. 26; Furgeson v. Jones, 17 Or. 204 (20 Pac. 842, 3 L. R. A. 620, 11 Am. St. Rep. 808) — each of which is to my mind closely in point. In Watts v. Dull, 184 Ill. 86 (56 N. E. 303, 75 Am. St. Rep. 141) a petition which neglected to state the name and residence of the mother, and which did not recite that the same ivere unknown, was held fatally defective. The petition was also held defective because it did not allege that the natural mother consented to the adoption, although it did allege that the mother had deserted the child. The crux of the case is this language of the Supreme Court of Illinois from one of our own cases: “A child by adoption cannot inherit from the adopted parent unless the adoption has been in strict accordance with the statute.” See Tylor v. Reynolds, 53 Iowa, 146. In Keegan v. Geraghty, 101 *480Ill. 26, the court said: “As against the adopted child, the statute should be strictly construed, because it is in derogation of the general law of inheritance, which is founded on natural relationship, and is a rule of succession according to nature, which has prevailed from time immemorial.” See, also, in this connection, Brown v. Barry, 3 Dall (U. S.) 365 (1 L. Ed. 638). In Ex parte Clark, 87 Cal. 638 (25 Pac. 967), the Supreme Court of California said: “We have held that our law of adoption is not unconstitutional, Estate of Stevens, 83 Cal. 322 (23 Pac. 379, 17 Am. St. Rep. 252), but to acquire any right under it its provisions must be strictly followed, and all doubts in controversies between the natural and the adopting parents should be resolved in favor of the former. 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.” In Johnson v. Terry, 34 Cornn 250, the Supreme Court of that State said, in effect, as stated in the syllabus, that: “ The statute which provides a mode by which a parent may give away a child in adoption implies that it can legally be done in no other mode.” In Furgeson v. Jones, 17 Or. 204 (20 Pac. 842, 3 L. R. A. 620, 11 Am. St. Rep. 808), the Supreme Court of Oregon quoted with approval the rule announced in our eases of Tyler v. Reynolds, supra, and Long v. Hewitt, 44 Iowa, 363, and further said: “ It will assist us some, in determining- this question, to ascertain the nature of the power conferred, and the rule of construction, in such case, to be applied to the statute. The permanent transfer of the natural rights of a parent was against the policy of the common law. The right of adoption, as conferred by this statute, was unknown to it, and repugnant to its principles. . Such right wás of *481civil law origin, and derived its sanction from its Code. The right of adoption, then, being in derogation of common law, is a special power conferred by statute, and the rule is that such statutes must be strictly construed. Brown v. Barry, 3 Dall. (U. S.) 365, (1 L. Ed. 368); Dwar. St., 257. This being so, the statute must receive a strict interpretation, and every requirement essential to authorize the court to exercise the special power conferred must be strictly complied with.” See, also, valuable note in 14 Am. Law. Reg. (N. S.) 682. In Willoughby v. Motley, 83 Ky. 297, where there is a statute authorizing adoption, it is held:. “That no agreement to adopt is effectual, unless in compliance with the statute; and even though the father gave the child his name, and reared and held him out to the world as his own, yet it was held that such adoption was ineffectual.”
It is no answer to these propositions to say that section 3446 of the Code, requiring a liberal construction of the provisions of the Code to meet the objects and purposes intended, supplants the fundamental principles taken from the authorities quoted; for we expressly held to the contrary in Hopkins v. Antrobus, supra, where the matter was directly involved. The statute in question requires that the articles of adoption shall state, among other things, the names of the (natural) parents of the child. See Code 1873, section 2308. The majority concede that the articles before us do not give the name of the natural father, but they hold this immaterial and unimportant. I do not contend that the required statements must be in the exact language of the statute, but I do insist that somewhere in these articles all the essential statutory provisions must appear; and one requirement is as “ essential ” as another. The lawmakers in their wisdom required that certain statements of fact appear in these articles, and it is not for us to dispense therewith — to say that some are material, while others are not, or that some are of so small importance that they may be omitted altogether. We can see a very good reason for *482having the names of the natural parents stated. Often the child is adopted at an age when it does not know its own parents. As it is entitled, in any event, to inherit from them, it is quite important that somewhere there shall be an authentic statement as to who its natural parents are. Moreover, ordinarily no one but natural parents may consent to another’s adopting a child, and it is important to know that the proper persons have given consent to the adoption. Burger v. Frakes, 67 Iowa, 460. But, after all, it is not for us to speculate as to the reason for injecting this requirement. The Legislature has spoken, and that is the end of the inquiry.
The articles of adoption before us do not give the name of the father of the child. If that may be omitted, then the name of the mother may be, and, if that may be done, then the name of neither need be given, and, if that be the case, then any other requirement may be omitted which courts may regard as without prejudice, and we shall have no rule except the views of the particular judge before whom the case may be tried. There is but one safe rule in this respect, and that is to hold the statute mandatory. We must hold the statute either mandatory or directory, and, as we have already committed ourselves to the doctrine that the statute must be strictly complied with, we see no good reason for departing from that rule. Of course, defective articles may be so drawn as to give contract rights; but that question is not before us now, and needs no elucidation at this time. However, see Chehak v. Battles, 133 Iowa, 107. In some states nothing more than a substantial compliance with the statute is required. See Bancroft v. Bancroft’s Heirs, 53 Vt. 9. But this is not the rule here, nor is it the one prevailing generally.
I am therefore of opinion that Buth Alice Melvin took nothing by inheritance from her alleged foster mother. In other respects, I agree with the conclusion of the majority.