(dissenting).
I cannot concur with my Brethren in this case in answering the third and fourth propositions here for solution.
I do not believe that the decree in the proceeding for partition of the lands of Mrs. Mary J. Rule in cause No. 1100, in which it is contended that the legality of the adoption of Lulu May Browning in Kentucky was determined, and also that her legal rights flowing from that adoption, gave her capacity to inherit an interest in the lands of Church W. Rule in Mississippi.
*741I think this decree was not res judicata of Lula May Browning’s right to inherit the lands in Mississippi, because there never was an issue made up in that case, or joined in it, upon which the court had jurisdiction or power to make any such determination. I fully recognize the rule, as settled, of course, that the judgment of a court of competent jurisdiction, however erroneous, is final between the parties to that litigation, but I know, also, that on this much misunderstood question there are limitations upon the power of the court to bind parties to a record by way of res judicata.
In the case of Charles v. White, 214 Mo. 187, 112 S. W. 545, 21 L. R. A. (N. S.) 481, 127 Am. St. Rep. 674, a decision was made which best illustrates my views upon this limitation of the general doctrine announced by the majority of the court in this case, and which best sustains my view that the case at bar is an exception to such general rule, as well established as the rule itself. In that case, it is stated, quoting from the opinion of Chief Justice Beasley in Munday v. Vail, 34 N. J. Law, 418:
“Jurisdiction may be defined to be the right to adjudicate concerning the subject-matter in the given case. To constitute this, there are three essentials: First, the court must have cognizance of the class of cases to which the one' to be adjudged belongs. Second, the proper parties must be present. . . . Third, the point decided must be in substance and effect, within the issue. . . . A defect in a judgment arising from the fact that the matter decided was not embraced within the issue has not, it would seem, received much judicial consideration. And yet, I cannot doubt that upon general principles such a defect must avoid a judgment.' It is impossible to concede that because A. and B. are parties to a suit, a court can decide any matter in which they are interested, whether such matter be involved in the pending litigation or not. Persons, by becoming suitors, do not place themselves for all purposes under the control of the court, and *742it is only over those particular interests which they choose to draw in question that a power of judicial decision arises.”
Where the court proceeds beyond the allegation of the pleadings and the prayer for relief, and decrees a matter between parties defendant, its judgment to that effect is void and open to collateral attack. Unless the defendants (parties) contest an issue with each other upon the pleadings between themselves and the plaintiff, or upon cross-pleadings, between themselves, the judgment will not be res adjudicata in subsequent litigation between them.
This limitation upon the general and much abused statement of the general rule that a court of competent jurisdiction by its judgment forever settles, by way of res judicata, all questions that might have been litigated between the parties is approved by every respectable court where it has been invoked, and by the supreme court of the United States.
I repeat that it is just as well settled that, unless there was an issue between the parties that, although the court had juriscjiction of the subject-matter and of the parties, its judgment as to questions outside of and beyond the issues is mere obiter dictum, and without power of the court to determine them and bind parties by way of res judicata.
The only purpose of the petition in cause No. 1100 to partite the lands of Mrs. Mary J. Rule was to divide it into four parts, giving one part to each of her four heirs, and to the heirs of those of them deceased. There never was any effort to divide the lands of Church W. Rule between his widow and the so-called adopted child. The lands of Mrs. Mary J. Rule were only divided into four parts, as they would have been if the child had not been made a party to the record. The relief asked for was to divide the lands of Mary J. Rule, and not to divide the lands of Church W. Rule, and in fact no partition of the *743lands of Church W. Buie was ever made. I know the court had jurisdiction, under section 3525 of the Code of 1906, to determine every interest in the lands, and if there had been an issue in the case upon which the court could have predicated its determination that the child was so adopted in Kentucky as that it was entitled to inherit an interest in the lands of Church W. Buie in Mississippi, it would have been res judicata, but I repeat that judgments are res judicata only of those things necessarily and directly in issue, and which have been fairly heard and tried and determined. See Black on Judgments, secs. 611, 614; Land v. Keirn, 52 Miss. 341; Shuler v. Murphy, 91 Miss. 518, 44 So. 810, 14 L. R. A. (N. S.) 333, 124 Am. St. Rep. 708; Lincoln National Bank v. Virgin, 36 Neb. 735, 55 N. W. 218, 38 Am. St. Rep. 347; Bridges v. McAlister, 106 Ky. 791, 51 S. W. 603, 45 L. R. A. 800, 90 Am. St. Rep. 267.
In the case of Shuler v. Murphy one of the tenants in common had filed a petition for partition, and asserting that each of eight heirs were entitled to a share of the lands which were asked to be sold for partition, and the chancery court, with jurisdiction of all the parties, solemnly adjudicated that one of these shares belonged to one Taylor, and the lands were sold and the sale confirmed and the money ordered distributed according to the decree of the court, and the creditors of Taylor appeared on the scene and garnished the commissioner and sought to have Taylor’s interest applied to their debt, and an issue was made up between Taylor’s two sisters, who claimed that Taylor had sold them their interest in the land before the decree of partition was made and the creditors of Taylor; and this court held that that decree was not res judicata against these sisters, who were parties to that proceeding for partition, and who really and in fact owned Taylor’s interest in the lands before the decree for partition was made, but that issue was not made up in the case, and they asserted no claim to it in *744that partition proceeding. That case is to my mind decisive of this ease by this court.
It is a mistake to assume that there was an issue disclosed by this record on the question of whether or not Lula May Browning was so adopted in Kentucky as to confer capacity upon her to inherit lands in Mississippi from her adoptive father. It never was affirmed in that petition in cause No. 1100 that Lula May Browning Buie did inherit by reason of the adoption an interest in Church Buie’s land in Mississippi. The petition simply alleges, which is .just as near as that affirmation was made in the petition, that Mrs. Buie “was advised that the child had been lawfully adopted,” but, “submitted this question to the court ” And the court, responding, said that, inasmuch as he had been requested to decide this question of whether the child was lawfully adopted, proceeded to hold that it was so adopted, and had capacity to inherit lands in Mississippi. The matter claimed to be res judicata here was never affirmed on the one side or denied on the other. The child was represented by a guardian ad litem, who filed a mere formal answer, and affirmed nothing, claimed nothing, and denied nothing, but merely submitted • the interests of the child to the court. I repeat, without an issue, and a trial and determination of that issue, the decree of the chancellor in cause 1100 on the subject of the child’s capacity to inherit lands in Mississippi as absolutely void and binding upon nobody.
It will not do to say that Mrs.- Buie filed the petition and herself asked to be done just what was done. That suggestion would be pertinent if an estoppel in pais were claimed against Mrs. Buie, but there is no predicate for an estoppel in pais against Mrs. Buie here, on account of her attitude assumed in that partition proceeding because that act on her part was purely voluntary and without consideration, and nobody is claiming in this case that they have acted upon it to their prejudice, and therefore *745estoppel does not lie against Mrs. Rule, because its essential principle is lacking; that is, that somebody has •parted with his money on the faith of her attitude, and would be injured by her assertion of a right to the lands. These blood brothers and sisters of Lula May Browning claiming these lands certainly have not been injured. The real question in the case is not whether Mrs. Rule would be estopped, which she would not be of course, but the question is, did the adjudication of the chancellor of the child’s capacity to inherit lands in Mississippi become res judicata. I say not, because his determination of that question was without an issue in the case to rest upon.
As to the fourth proposition: I differ widely with my Brethren. I agree with the majority of the court that the adoption of Lula May Browning by contract in Kentucky did not give her capacity to inherit lands in Mississippi, for the reason stated by the court, but the logic of the court’s opinion is that, whilst she was not so adopted as to inherit lands in Mississippi, yet by way of res judicata she was so adopted as to inherit lands in Mississippi, and, if that be true, that by way of res judi-cata or otherwise she inherited, as the adopted daughter of Church W. Rule, an interest in his land in Mississippi, then she must stand as to those lands as the adopted daughter of Church W. Rule. I hold that by that adoption she became, in truth and in fact, the child, as if of the blood, of Church W. Rule and his wife, Lula A. Rule, and upon that child’s death her adoptive mother inherited her lands, and not her blood kin.
My Brethren take the view that the statute of adoption, or the status of adoption, however created, only had the effect of qualifying the child to inherit from its adoptive parents, and did not give the adoptive parents the corresponding right to inherit from it.
On this subject, there is almost a hopeless conflict of authority in the adjudged cases. A number of the states *746hold to the view, as best expressed by one of the greatest lawyers and greatest judges America has ever known, Judge Elliott, that the act of adoption in effect establishes the blood relation between the adoptive parents and the adopted child, and that the child stands as to the property of the adoptive family as if it had no blood kin from whom it has been cut off by the act of adoption, and that upon its death the property descends to its adoptive kin, that is, the property it gets in the adoptive family, and not to its blood relations. This, I think, is the more just, reasonable, and humane construction that can be given to our statute of adoption. We do not by this view take away from the child the capacity to inherit from its blood relations, or to give them the right to inherit from it as to property of its family of the blood, but, as to the property it acquires in the adoptive family, the law of descent and distribution, when it speaks of “parents” as heirs, or “brothers and sisters” as heirs, has reference to the members of the adoptive family, so far as the property of that adoptive family is concerned.
We add nothing to the law of descent and distribution by this view, and we take nothing away from the law of descent and distribution, which is, of course, aimed at and founded in the natural family relations, but we simply give a construction to our statute on the subject of adoption that its purpose by full adoption was to confer upon the child the right to inherit from its adoptive parents and give them the corresponding right to inherit from it. This room for construction is furnished by the fact that there is no law in Mississippi, that is, no statute law, which determines the right of inheritance from an adopted child at all, and the courts by decision must establish a rule that is most just and humane and reasonable and consistent with the policy of encouraging adoption, rather than discouraging it.
There is absolutely nothing in the statute of adoption in this state which compels us to take the view that the *747blood relative must inherit from the adopted child rather than its adoptive relatives, and I will not give my consent to sanction a rule so unjust as the rule contended for by the majority of this court. If the child is the lawful child of the Buies they are its lawful parents. It would be monstrously unjust to suppose that the legislature ever intended by section 542 of the Code of this state to say that after the Buies had taken this little child in its tender infancy with the consent of its natural mother and father, if it had any, who had utterly abandoned it and cast it out, and by the law of adoption were absolved from all further obligation to it, and that the Buies had assumed all the obligations, at law, of father and mother, and bound themselves for its support, maintenance, and education, as they were bound if they were its adoptive parents, and bestowed upon it their affections and their care, and educated it, and then by the death of Mr. Buie it got a large estate in his lands, and upon its death those lands should go to its natural brothers and sisters rather than to Mrs. Buie, its adoptive mother, and is a rule of law and of construction of that statute, to which I will never give my consent. I am adopting the result of the rule of the civil law, from which the statute of adoption is taken. Under the civil law, the adoptive parents are its parents, rather than its natural parents. The adoption was unknown to the common law.
The view I have adopted as expressed by Judge Elliott in the case of Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788, has been affirmed by a very respectable number of the supreme courts of the states, which will be found in the briefs of counsel for appellant, and that view we think has been repudiated by the states of Wisconsin, Ohio, and Missouri, and the reasoning upon which they reached the conclusion that was reached by the majority of the court in this case I cannot approve. Of these cases holding as the majority holds in this case that *748the blood kin inherit from the adopted child upon its death rather than its adoptive mother, Mr. Freemen, who has made of the American State Reports one of the greatest law publications of the day, and who was recognized as the foremost annotator and one of the foremost lawyers of his day in America, in the notes to Van Matre v. Sankey, 30 Am. St. Rep. 229, said:
“The vice of these decisions, in our judgment, lies in the fact that the courts making them gave too strict a construction to the statutes of adoption, and were unwilling to concede that such statutes had any other object than to confer the benefit of heirship to the adopting parent upon the child adopted. The purpose of these statutes we conceive to extend further than this, and, in effect, to take the child from its parents by birth, and to give it to the parents by adoption, and to create, as between it and such parents, the reciprocal rights and relations of parent and child, and to give to the former both the incidental and the direct advantages of parentage; and we, therefore, think that, upon the death of such child, intestate, and leaving an estate which by statute, vests in its parents, the word “parents,” as thus used should be deemed to designate the adopting parents, rather than the parents by birth; for under the law, it is the former, rather than the latter, who occupy the relation of parent to the child at the time of its death.”
With Judge Elliott and Mr. A. C. Freeman, I am in hearty accord, and conceive myself to be in very respectable company.
In find that in the state of Kentucky, the supreme court of that state in the case of Lanferman et al. v. Van Zile, 150 Ky. 751, 150 S. W. 1008, adopts, in fact, Judge Elliott’s view. Kentucky is one of the states holding as a construction of its statutes of adoption that:
“By the event of adoption,” the adopted child “becomes the legal child of the adopting parent, ... in the same light as a child born in lawful wedlock. . . , *749The estate of the natural child, which he inherits from his parents, is defeated by his death in infancy, without issue, and the property then goes back to the kindred of that parent. The adopted child, inheriting as though he were the child of his foster parent, takes subject to the same limitation; and when he dies in infancy, and without issue, the property under the statute descends to the kindred of that parent from whom he received it.”
It is indeed a strange and illogical conclusion, as it seems to me, to which the majority of the court have arrived in this case; this child had its status as an adopted child fixed by the laws of Kentucky, under which laws, as above stated, if it had died there, as it died here, the property it inherited from Mrs. Rule would have gone to Mrs. Rule, rather than to its blood kin, and yet by way of res adjudicata, and otherwise, the court has given it by inheritance an interest in the lands of Church W. Rule, and yet refuses to enforce that legal result flowing from the status created thus in Kentucky, to wit, that upon its death without issue and intestate its property does descend to its adoptive mother, Mrs. Lula A. Rule.
The logic of the majority of the court is incomprehensible to me. If we are bound to enforce its status as an adopted child in Kentucky,- then it seems clear to me that we ought to enforce all the legal rights of that status that would flow in the state of Kentucky upon its death.
It is so monstrously unjust to conceive of a man laboring and accumulating a fortune.and dying and leaving it to his wife and an adopted child, and that upon its death before the death of its adoptive mother the adopted child’s relatives, who had never been adopted by the adopting father and mother, and who are strangers to their blood, should take the property of the child thus inherited in the adoptive family, rather than its adoptive mother as to shock my sense of justice and fair play, and I refuse to yield my assent to any such construction of the statute of adoption.
*750This is a very important matter, and this case is of first impression in this court, and I have written this dissenting opinion in the hope that the legislature will, by positive statute overturn the conclusion that has been reached by the majority of the court on this subject and establish the law upon what I believe to be a just basis, and upon a basis which my Brethren, I really believe, think it ought to rest upon. As I understand, they reach their conclusion only because of the binding force of the statute, which they feel they have no power to construe as I have.