Year: 1878

- II, 0AH. A3t!ng tne a8feemen IN queotl0n
BY these principles it was clearly illegal and
void as against public policy, and the decision
OF the court, in regard to its validity, right
At the time the agreement was entered into the
parties were still husband and wife. It con-
temPiated the fact that divorce proceedings had
already been or were about to be instituted
by the plaintiff against the defendant
dissolution Of their marriage relstions.
By its terms defendant agreed to pay her one
thousand dollars down, to execute his four
promissory notes for 81 600 each, with security,
and to place the same together with other
property, in the hands of . third party, to be
delivered to her upon the happening Of the
event therein provided, as hereinafter stated


She, on her part, agreed to receive this prop
erty and money sin lieu of, and in full ali
mony in said divorce case" to fulfill and per-
inquish all her dover rights and all claims to
any property of her said husband. The agree
ment expressly provides that said notes and
other property SO placed in escrow are '' to be
delivered to her when she shall have obtained
q decree of divorce from her said husband, the
defendant, and not before, and if the divorce
is not obtained in sixty. days.. or
the date of the agreement, August
z, 1873, provided he puts in no appearance or
answer in the case, then said money, notes, de-.


are to be redelivered to said defendant, and
she shall take her lawful share of his estate,
and said instrument of agreement is to have no
that this agreement was ever brought to the at
tention of the court in which the divorce pro-
ceedings were pending, nor that the defendant
ever put in any appearance therein, or in any
way contested the suit, but it does appear that
q decree of divorce was rendered October 18th,
following. It is clear that the parties had no
legal capacity to enter into this contract at the
time it was made, and the inference from its
provisions, taken in connection with the ad-
mitted facts, is quite strong, if
not conclusive, that both parties desired
q separation, and with the view and for the
purpose of facilitating that result, entered
into this agreement fixing its terms, SO far as
concerned the question of almony and the di-
Vision of property in the full expectation and
with the implied understanding that plaintiff
would prosecute her suit for divorce to a
speedy close, and that the defendant would not
appear to contest the same. Unless such was
the implied understanding it is difficult to dis
cover any good reason why the delivery of the
notes and property and the further operative
effect Of the instrument of agreement were
made, defendant upon the fact that decree
of divorce should be obtained within sixty
days. or within reasonable time provided
there was no appearance or answer put in
by the husband, defendant. One of these
interest that did not become due
and payable until the divorce was obtained.
Parties are not ordinarily desirous of Fastening
the maturity of such, their obligations. The
only purpose, therefore, so far as we can dis
cover, of the stipulation limiting the time
within which such divorce was to be obtained,
was to induce the plaintiff to procure an early
decree, in accordance with the desire of the de-
fendant, and it can hardly be supposed that he
intended to obstruct the accomplishment OF
this object by any contest. Considering all the
provisions of the agreement, in connection with
the circumstances, the implication arises that
its leading purpose and its effect was to facili-
tate the divorce without any contest, and that
both parties colluded together to bring about
that result conceding, however, the competen-
cy OF the parties thus to contract
with each other, and that the
court below erred in its construction
of the agreement, we ought, nevertheless, to
send the case back for new trial, for it was
clearly the duty of the court, in case it had any
doubt as to its construction and as to the pur-
pose of the parties in making it, to allow the
fullest inquiries to be made, not only into the
surrounding circumstances, but into the mo-
tives and secret understanding, of any of the
parties tending to show any collusion in the
procurement of the divorce, and their purpose
in making the agreement. It is quite probable
that these inquiries were not fully prosecuted
at the trial because of the ruling of the court
upon the effect of the agreement that made
such inquiries unnecessary.


Judgment reversed and new trial ordered


CORNELL. Judge.