Daily globe., 1878-05-21
SUPREME COURT.
DECISION or CASE FILED JESTER
DAY.
Mary G. Adans, Respondent, Us. C. Po,cel Id
ans, Appellant
OPINION

OPINION.
The demand in suit is one Of several negotia-
BILE promissory notes which were given by the
defendant to the plaintiff at the same time and
upon one and the same entire consideration.
They all originated in the same transaction,
having been given in pursuance of an alleged
illegal agreement entered into between the par
ties while they We're husband and wife, for the
purpose of procuring divorce between them
selves in an action then commenced by the
plaintiff against said defendant. The defense
interposed and relied on in this action
is this alleged illegallity in the considera-
tion OF the note, it being claimed
that said agreement was void as against public
tnrned solely upon the point that the defend
ant was concluded from asserting this defence
by former Judgment recovered by default on
one of these notes in an action between the
same parties in the court of common pleas of
Ramsey county The correctness of this ruling
tion on this appeal. The record and bill of ex-
ceptions before us contain no copy of the COM
plant without action, and its purport cannot
be gathered from the statement that the judg-
ment was rendered on certain note made by
the defendant on the 10th day of October, 1873,
and interest. and on the admitted fact that
such note was one of the series above
named. 1t must be assumed, then,
that the complaint in that
action contained only such allegations as were
essential to its validity, and to q recovery upon
the cause Of action stated, there being no ap-
pearance by the defendant. In the statement
of cause of action upon a negotiable promis-
sorry note no consideration need be averred,
because the instrument of itself imports one
complaint which contains no such averrment
is not for that cause demurrable Moaks Van
IT, thereforefore, much be assumed, no
issue was rendered by the complaint in the ac-
tion in which such former Judgment was re-
covered, upon the fact of consideration as re-
spects the note then sued on, it is evident, that
no question of illegality of consideration was
determined by the Judgment because being
rendered by the default it was not an adjudi-
cation upon any fact or matter which was not
stated in the complaint, or which the plaintiff
would not have been required to prove in the
maintenance of his action under the traverse of a
general denial and under such denial q valid
consideration for the note need not have been
proved nor could the defendant therein have
availed himself of any special defense of
charcter such "a is interposed by the answer in
this action.
Finly vs.. Quirk, Minn 1874. Q
The question before us for adjudication,
then, is whether the defendant here is preclud-
ed by this former judgment from litigating in
this action, a question which was not raised by
the pleadings in that action, and hence was not
directly passed upon nor determined, because
the note there sued on originated in the same
illegal transaction as the one now in suit, and
recovery might have deem defeated if the de-
Tense which is here set up had been there prop
erly lnterpOted, as respects the particular note
or demand upon which the recovery was had in
that ctiOn, the judgment which was there rem
dered is inality and conclusive of the rights
oE l. LII
privies, not only as to every
matter and defense which was actually pre-
sented and litigated therein, but as to every
possible defense or matter that might have
been presented for adjudication. So far as that
note is concerned, the litigation is forever
closed, and the rights of the respective parties
in respect thereto, have become finally fixed
and determined. Allis VS.. Davidson, % Minn.,
442; Thompson vs.. Myrick and wife, Mss.
Ap. Tr. 1877.
The operative effect, however. of the judg-
ment as a bar or estoppel in another action be-
notes not directly involved or passed upon in
the former action, though resting upon the
same illegal consideration, is limited to the
precise points which were then actually con-
troverted, and to the matters which were en-
braced in the issue there rendered, upon the de-
termination OF which such judgment was rem
dered.
Dixon vs.. Merritt, 81 Minn., LAG.
Cromwell VS.. County of Sea. 4 Otto 357.
Davis VS.. Brown Otto 423.
The decision as well as the instruction which
the court below gave upon this point was
therefore erroneous, and new trial must be
ordered unless, as is urged by respondent, it is
apparent from the whole record that the iudg-
ment below is right notwithstanding such
error.
1t is contended by respondent that the ap-
pei!ant was precluded from impeaching the
validity of the note sued on by showing that it
was given in pursuance of void agreement,
because he was a. party to such agreement
standing in "paridelcto' while court will
not aid such party by relieving him from the
effects of an illegal agreement when once
executed, as was the case in Britt VS..
Hitchcock, 49 Ala. 46S, cited by
respondent, it will not prevent him from resis-
ting its enforcement while it remains an execu-
tory contract, nor will it extend its aid to
either party to enforce any of its provisions
It is conceded here upon the facts that the note
in question, was given in pursuance of the writ
ten agreement and to carry out it's provisions. It
was in fact part of the agreement resting
wholly upon its validity for support, and the
plaintiff nov asks the aid of the court in en-
forcing it. The point is not we'll taken.
Sayles VS.. Sayles, Fos. II N. H., 312.
This brings us to the consideration of the
remaining point which relates to the validity
of the agreement. The preservation and the
maintance of the marriage relation wherever
found, are deemed essential to the public vel
fare that it has become the settled policy of
law, ever to guard and uphold it
with q watchful vigilance. It is
not within the power of the parties to
terminate it at pleasure, or for any cause.
Its dissolution can only be declared by a court
OF competent jurisdiction for some specified
cause prescribed by law, and which must be as
certained upon proof taken in the regular
court of judicial proceeding instituted for
that purpose. 1t is not enough that the parties
consent to decree of dissolution, or admit in
court the existence Of the requisite facts upon
which such a decree can be based. The court
must be satisfied in every case upon proper in
vestigation and proof, and upon it's own motion,
if necessary, of the truth of the alleged facts
upon which the decree is sought, and also that
the suit is not being prosecuted by the conniy-
ance or collusion of the parties.
SO careful and strict was the observance of
this rule by the late court of chancery in New
York, that in case where the bill was fled
for divorce on the ground of adultery and
taken as confessed, and where the fact of adul-
terry was so clearly proved as to leave no doubt
as to the right Of the complainant to decree
the learned chancellor refused to recognize any
right or power in the parties even after such
proofs but before entry Of final decree to enter
into any agreement in respect to alimony
holding that all such agreements were invalid:
and when made without the express sanction
OF the court on examination, not entitled to
any respect because ''their tendency if respect
ed OF approved without such examination
would be to produce collusion between parties
with view to the dissolution of the marriage
contract between them" This doctrine is
80 well calculated to uphold the policy Of the
law in respect to the preservation of the mar
rage relation, and to protect courts in the ad-
of proceedings in divorce from
all lmpositions by means of secret and collusive
understandings, to effect separation in fraud