#### Sponseller *v.*Sponseller.

*Husband and wife*— Approval *by court of alimony*adjustment— *Consent decree can not be collaterally attacked,*when— *Vacation or modification of decree for fraud*— Sections *11631 and 11635, General Code*— Performance *as estoppel to collateral attack.*

1. In a case where a wife sues for alimony, a court has the power to approve an agreement made by the husband and wife adjusting such alimony.

2. Where a court acquires jurisdiction over such subject-matter and the parties, a consent decree adjusting alimony can not be collaterally attacked. *r--“*'

3. If such decree has been fraudulently procured, or obtained without consent, a party may have such consent decree vacated at the same term, or thereafter vacated or modified, under Sections 11631 and 11635, General Code. 1 -

4. Where a wife petitions for alimony, and the court by decree has approved an agreement between the husband and wife adjusting alimony, whereby the husband agrees to convey property to the wife on condition that she resumes marital relations with him, and thereafter she, in good faith, carries out the agreement, the husband is estopped from collaterally attacking the validity of such decree.

(No. 18236

Decided May 27, 1924.)

Error to the Court of Appeals of Crawford county.

William and Sadie 'Sponseller were husband and wife. On July 6, 1920, Sadie, the wife, filed her action asking partition, claiming ownership in fee simple of an undivided one-third part of certain premises in Crawford county, Ohio, and also for an accounting of rents and profits. .The title to the other two-thirds of the premises was conceded to *396be in the husband. Other issues in relation to the conveyance of 26% acres to one Spaide and a mortgage to one. Drexel were tried by the' Court of Appeals and determined in favor of the plaintiff and will not be disturbed by this court. The alleged title to the one-third of the premises which plaintiff claims in her petition rests upon a certain decree made in a former case which will be referred to later.

"William Sponseller, the husband, filed his answer and cross-petition to this partition ease in which he made the following defense: That on November 22, 1912, the wife filed her petition in the Crawford county common pleas court, praying for alimony; that, without, trying the cause, the alimony case was dismissed by mutual agreement on consideration that they should resume their relations as husband and wife, which mutual agreement was carried into effect; and that the decree awarding to plaintiff the undivided one-third of the premises was made without notice to the husband, was without authority in law, and was a cloud upon his title to the premises. He therefore asked that plaintiff’s petition in partition be dismissed and the decree for alimony in the former case be canceled and expunged, and for such general relief as. he might be entitled.

The decree in the previous alimony case, rendered on November 27, 1912, stated that the cause came on to be heard “on the pleadings and the evidence, and was submitted to the. court, upon the same and the agreement of the parties herein, and the court being fully advised in the premises, and on consideration thereof finds that plaintiff *397was at the time of the filing of her petition herein, and amendment thereto, and still is, a bona fide resident of said county of Crawford and that there is a separation of plaintiff from defendant in consequence of ill treatment on his part against her, and that by reason thereof, and said agreement of the parties herein, the plaintiff is entitled to alimony out of the real estate of the defendant hereinafter described, which is subject to the life estate of said Sarah A. Sponseller, the widow of one Samuel Sponseller, deceased. It is ’ therefore considered, ordered, adjudged, and decreed by court that said plaintiff, Sadie Sponseller, have and possess as and for alimony the equal one undivided third part of the following described lands and tenements of defendant subject to said life estate, to wit: [Description of the premises.] It is further considered, ordered, adjudged and decreed by court that the said defendant, William Sponseller, within 20 days thereof, execute and deliver over to plaintiff his certain deed of general warranty conveying. unto her the said equal one undivided third part of said lands and tenements subject to said life estate, and in default thereof this judgment and decree shall operate as and for such deed and so much thereof as would show the transfer of the title to said undivided equal one-third part of said real estate subject to said life estate shall be certified by the clerk of this court to the county recorder of said county for record. The court further finds that the charge made by the defendant as to the infidelity of the plaintiff is not sustained, and that defendant admits herein that said charges are not true, and all charges made by either party against *398the other are withdrawn. It is further considered, and adjudged by court that defendant pay all the costs herein taxed at $-, and execution for such said costs is hereby awarded.”

This action in partition was filed in the common pleas court, which awarded partition and an accounting. The cause was appealed to the Court of Appeals, and in that court was heard upon its merits and submitted upon the pleadings and the evidence. The Court of Appeals found from the issues joined in favor of the plaintiff, awarded partition of the premises, as prayed, gave judgment to the wife for $866.66 on the Spaide transaction, found the wife to be surety only on the Drexel notes and mortgage, found the wife to be entitled to an accounting for rents and profits, and remanded the cause to the common pleas court for that purpose. Thereupon the plaintiff in error instituted proceedings in error in this court, seeking a reversal of the decree of the Court of Appeals.

*Mr. O. W. Kennedy*and *Messrs. Gallinger & MeCarron,*for plaintiff in error.

*Mr. L. C. Feigfmer,*for defendant in error.

Jones, J.

In the suit for alimony filed by Sadie Sponseller on November 22, 1912, the court heard the case on the issues joined, found that the plaintiff was a bona fide resident of the county, and that there was a separation of the wife from the husband “in consequence of ill treatment on his part against her.” The court thereupon awarded her alimony under Section 11998, General Code, *399decreeing that the wife should “have and possess as and for alimony the equal one undivided third part” of the premises described. There is no doubt, in the judgment of this court, that the decree entered by the court in the former alimony case was a decree by the consent of the parties. The phrase “agreement of the parties” is twice used in the journal entry. However, it is claimed by plaintiff in error that the court had no jurisdiction to render any decree, since the closing words thereof stated that “all charges made by either party against the other are withdrawn.” There may be some doubt as to whether said charges so withdrawn do not relate to the charges of infidelity, as it appears from the journal entry that the court in fact heard the case upon the pleadings and evidence and found that there was a separation because of ill treatment on the part of the husband. Even if the journal entry should be construed as withdrawing all charges made by either party, it at least discloses that it was an agreed entry whereby the parties settled the case by agreeing that the wife should “have and possess as and for alimony the equal one undivided third part” of the premises described.

The court having jurisdiction in the alimony case, both of the subject-matter and of the parties, had the right to enter the decree it did. The decree having been made by the agreement of the parties was an adjudication as effective as if the merits had been tried, and was not subject to collateral attack. "Where the court has jurisdiction of both the subject-matter and the parties, and a consent decree has been entered by the *400court, such a decree is not even subject to direct attack, except for irregularity or fraud in its procurement. In *Harding*v. *Harding,*198 U. S. 317, 335, *25*Sup. Ct., 679, 684 (49 L. Ed. 1066), Mr. Justice White quotes the following principle, as sustained by a large number of authorities therein cited:

> “Decrees so entered by consent cannot be reversed, set aside, or impeached by bill of review or bill in the nature of a bill of review, except for fraud, unless it be shown that the consent was not, in fact, given, or something was inserted as by consent that was not consented to.”

If the decree of November 27, 1912, was not obtained by consent, or was procured by fraud, the husband had ample authority to have such consent expunged by the court during the term, or the entry vacated or modified after the term by a direct attack, under Sections 11631 and 11635, General Code. It is not necessary to refer to the large number of authorities supporting the principle announced as to the effect and validity of judgments by agreement. These are collated in the numerous text-books relating to that subject, among which we find the following rule stated:

> “Courts have the general power of entering judgment by consent of the parties, and a judgment may properly be entered by a court for the purpose of carrying out a settlement and compromise of a suit. * * * In one sense consent to the entry of a judgment appears to give it greater force than ordinary judgments. This is due to the fact that consent excuses errors and operates to end all controversy between the parties. In *401spite of the foregoing peculiarities of judgments by consent, the law has been broadly laid down that as between parties *sui juris,*and in the absence of fraud, a judgment or decree of a court having jurisdiction of the subject-matter, and rendered by consent of the parties, though without any ascertainment by the court of the truth of the facts averred, is as binding and conclusive between the parties and their privies as if the suit had been an adversary one, and the conclusions embodied in the decree had been rendered upon controverted facts and due consideration thereof by the court.” 15 Ruling Case Law, pp. 643-646.

The question we have here was featured and queried in the case of *Olney*v. *Watts,*43 Ohio St.. 499, 3 N. E., 354. There the husband attempted to obtain a modification of a former alimony decree. It appeared that there had been a consent decree whereby the wife released all her interest in her husband’s real estate in consideration of the payment to her of alimony in certain amounts decreed by the court. However, the decree itself was not before the court in that case. In remanding the case, the judge delivering the opinion said at page 508 (3 N. E., 356):

> “If, however, it shall, in the further progress of the case, appear that the former decree, instead of being in the nature of alimony payable in installments for the support of the wife, was in the nature of a permanent division of the husband’s property, and that the parties fixed the same by their own agreement, and the action of the court in the premises was simply an affirmance of the agreement by consent, this, if alleged and proved, *402may furnish a complete defense. As to that we express no opinion now.”

Substantially the same arguments as are now urged by counsel for plaintiff in error were made in the case of *Julier*v. *Julier,*62 Ohio St., 90, 56 N. E., 661, 78 Am. St. Rep., 697. Julier’s wife had obtained a divorce for his aggression on a petition containing a prayer for general relief. An agreement with respect to alimony had been made between the husband and wife, where, in consideration of sums paid to her, the wife released her dower in the husband’s real estate. The jurisdiction of the court to render the decree relating to the release of dower was contested, for the reason that the wife’s dower right was not the subject-matter before the court for adjudication. The court held that under her prayer for general relief it was empowered to adjust the rights of the parties in respect to alimony, and, in the course of the opinion, Williams, J., said, at page 111 (56 N. E., 664):

> “It appears to be well settled that in awarding the alimony, the court may, in its discretion, and generally will, confirm and carry into effect by its decree, any agreement which the parties have entered into concerning the same, that the court deems just and reasonable, and in doing so, may adjudge the conveyance of real property by one to the other, in pursuance of such agreement.”

However, there is another reason why this judgment should be affirmed. Even if it be conceded that the husband had a right to make a collateral attack upon the consent decree obtained in November, 1912, it is obvious, under this record and *403the finding of the Court of Appeals on appeal, that the plaintiff in error cannot prevail. It seems that the Court of Appeals heard the issue whether the decree was made without notice to the defendant or with the consent of the parties, and found in favor of the wife upon that issue. The evidence given by the wife, supported by that of her son and two of her daughters, tended to prove that the former alimony case was called by the court, and the evidence of the plaintiff submitted therein; that at the close of the plaintiff’s testimony a settlement was arrived at between the parties and their counsel, whereby marital relations were to be resumed upon the condition and understanding that the husband was to give to the wife an undivided one-third of the property and to keep and educate the children; and that the trial judge was informed of this agreement prior to the making of the decree. After the making of that settlement and the resumption of marital relations on the part of the husband and wife, if this testimony be true, the present contention of plaintiff in error evinces an attempt upon his part to deny the wife the fruits of the compromise after she has in good faith carried out her agreement by resuming her marital relations with him.

Under the authority of the principle announced in *Sanborn*v. *Sanborn,*106 Ohio St., 641, 140 N. E., 407, the husband is clearly estopped from questioning the validity of the consent agreement in this proceeding. It is conceded that after the agreement was made the parties lived together as husband and wife for nearly eight years. Should there be a future separation between this husband *404and wife, wherein alimony may again be prayed for, a court would.no doubt give consideration to tbe extent of alimony allowed and approved in tbe former decree.

Tbe judgment of tbe Court of Appeals is affirmed.

*Judgment affirmed.*

Marshall, C. J., Day and Allen, JJ., concur.

Matthias, J., concurs in propositions 1 and 2 of tbe syllabus-, and in tbe judgment.

Wanamaker, J., not participating.