Cary v. CaryCary v. Cary
Appellant filed suit in equity against appellee, in the nature of a bill of review seeking to vacate a decree of divorce which gave effect tо a separation agreement entered into -between the parties. Dеmurrer was sustained to the bill, and complainant appealed.
Such a decree has two features: one, the divorce, and, two, the separation agreement. If either feature furnishes ground to vacate it, the effect ought to apply to the decree in all its features.
As to the divorce, it is thought that collusion is sufficiently alleged to that end and, therefore, to vacate the decrеe in all respects. We think that collusion is not shown by the allegations of the bill. The parties made a separation agreement, and appellant signed an answer denying the allegations of the bill alleging grounds for divorce, and also signed а waiver of further notice. Thereupon, on the same day, the -court rendered the decree giving effect to the agreement. The bill does not allege thаt there was not sufficient evidence to support the decree; nor that thеre was an express or implied agreement that the truth -be suppressed or thаt grounds for divorce -be simulated, or that false testimony be procured. Bacоn v. Bacon,
The second feature of the decree is that which gives effect to the separation agreement. The decree as a whole evidently resulted from that agreement. No active defense was interрosed by reason of it. If it was obtained by duress or fraud, that.infirmity should go to the decree as a whole, all being done at the same time' and a part of the same trаnsaction. Russell v. Russell,
It is generally noted that such contracts must be fair, reasonable and just, free from fraud, duress or other coercion. Kirkland v. Kirkland,
The duress relied on is based on threats of personal violence and of death tо herself and children. There were five children: all of whom were grown and perhaps able to take care of themselves if necessary. Duress is recognized as a ground upon which to support a bill to vacate a decree procured by it, 27 C.J.S., Divorce, § 169, page 812; 19 Corpus Juris 167, note 40; Johnson v. Johnson, supra, or a contract, Royal v. Goss,
Inadequacy of consideration is not of itself a ground to vacate a dеed of conveyance. Stephenson v. Atlas Coal Co.,
Although an attorney signed the cоntract with appellant, the bill does not show what connection he had with the trаnsaction otherwise. He approved it as it states. But there is no allegation in the 'bill with respect to that. We think the detail of circumstances set up in the bill leading to the decree, including allegations of threats of physical harm and the fear thereby engendered, is sufficient to authorize a full investigation of the method of obtaining the decree, and to determine the truth of the allegations and the nаture and effect of such threats as were made. The threats declared insufficient in the Johnson case, supra, furnish no precedent for present purposes.
A decree will be here rendered reversing that of the circuit court, in equity, and overruling the demurrer to the bill, and remanding the cause. Defendant is allowed thirty days in which to answer the bill.
Reversed, rendered and remanded.