Chapin v. Chapin

135 Mass. 393 | Mass. | 1883

Holmes, J.

The question in this case is whether the plaintiff can maintain an action upon a promissory note executed to her by the defendant. If we look only to the immediate transaction, of which giving the note was a part, there can be no doubt of the plaintiff’s right. The plaintiff, having obtained a divorce from the defendant, conveyed her land to him, and gave a release of all her rights of dower and homestead, the defendant at the same time giving her twenty thousand dollars and this note, — on the face of it a lawful exchange. But this exchange took place in pursuance of a scheme, substantially set forth in a written agreement made before the divorce, and conditioned upon the divorce being decreed, by which the above-mentioned money and note were to be accepted instead of alimony. And it is objected that this agreement shows a transaction contrary to the policy of the law, both as tending toward collusion in obtaining the divorce, and as attempting to withdraw the question of alimony from the direction of the court.

The agreement was void, of course, if for no other reason, because it was made between husband and wife. Its only importance is as supplying the terms of a new contract, made after the divorce was granted, referring to it and adopting most of its provisions. The latter contract could not tend to promote collusion, and we think that it was not infected with the supposed vice of the original agreement. The original agreement was called to the attention of the court granting the divorce, and, if that was not enough to purge the scheme of the objection we are considering, the new contract was made after further discussion, seemingly with legal advice, when the parties must have understood that they were free to do as they chose, and with sufficient modification of the former terms to show that it was a fresh start. It is not necessary to go further to decide this part of the case.

With regard to the other, the agreement does show, no doubt, that a part of the consideration for the note and money was the plaintiff’s accepting them instead of alimony. It was only a part, however, for another very substantial portion was her conveyance and release. We need not consider, therefore, what the effect of her agreement would be upon an application for alimony, nor what the effect of such an application would be upon her right to retain the money. For even if such an agreement, made by a person sui juris, acting with legal advice, and dealing with her own pecuniary interests, is for any reason void, it is not illegal in "such a sense as to invalidate the whole transaction, (Bliss v. Negus, 8 Mass. 46, 51,) but the note would be supported by the conveyance and release, notwithstanding the parties had affected to add, as part of the consideration, an agreement which, if void, they are both presumed to have known to be so. The only point reserved is whether the action can be maintained. If it can be, the amount to be recovered is agreed upon. Judgment affirmed.