Davis v. Hinman

73 Neb. 850 | Neb. | 1905

Duffie, C.

Frank and Fannie Chambers ivere husband and wife. In July, 1899, Mrs. Chambers bought of Beach I. Hinman three acres of land for $190, taking a contract of purchase therefor. The purchase price has been paid, with the exception of about $30, when, in September, 1901, and during the pendency of an action for divorce brought by Fannie Chambers, against her husband, she assigned the contract of purchase to her husband, and thereafter he assigned the same to the* appellee, Alfred H. Davis, an attorney, as security for fees and expenses in defending the divorce action. After that action had been determined, and on a settlement between Davis and Chambers, Davis accepted the contract in full satisfaction for his services' and expenses, and thereafter tendered to Hinman the amount due upon the contract, and demanded a deed, which Hinman refused to make. Thereupon Davis brought this action against Hinman to enforce the making of a deed, and Mrs. Chambers intervened, alleging, among other matters, that during the pendency of her action for divorce, which was being bitterly contested by her husband, an agreement Avas entered into betAveen them that, in consideration of the assignment of this contract and of the transfer to her husband of a span of horses, he would abandon his defense, and alloAv her to take a decree for a divorce and for the custody of her tAVO children; that he failed to keep such agreement, but prosecuted his defense Avith renewed activity after securing an assignment of the contract and possession of the horses.

One phase of the case which was apparently overlooked in the trial beloAV, and Avhich has not been urged upon the appeal, cannot be ignored by this court. The object of the agreement entered into between Mr. and Mrs. Chambers, and in consideration of Avhich she assigned the contract, was to bring about a dissolution of the marriage contract, and to put an end to the various duties and relations resulting therefrom. Any contract having any such purpose, object or tendency cannot be sustained, but must be regarded as being against sound public policy, consequently illegal and Aroid. The marriage relation is one to be encouraged a ad maintained when formed. Such is the well-settled policy of the Iuav; and its dissolution or determination is not to be left to the caprice of the parties. If dissolved, it must be done in accordance Avith some positive enactment of laAv and in due course of judicial proceeding. The good order and well-being of society, as well as the laws of this state, require this. Sayles v. Sayles, 21 N. H. 312; Smith v. Smith, Wright (Ohio), 643; Beard v. Beard, 65 Cal. 354; Wilde v. Wilde, 37 Neb. 891.

It is equally well settled that, Avhere the general public is affected by a contract violating the law, the courts will refuse their aid to the parties and leave them as they found them, although the contract has been performed by one party, so that the other has received the benefits thereof Avithout giving anything in return. Brower v. Fass, 60 Neb. 590.

It is recommended that the decree of the district court he affirmed.

Albert and Jackson, 00., concur.

By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is

Affirmed.