| Ill. | Jun 15, 1878
Lead Opinion
The question chiefly discussed in this case
is that of the capacity of plaintiff, at the time of the contract, to contract with her husband.
This statute of March 30, 1874, (R. S. 576,) goes much further in abolishing disabilities arising from coverture, than any former statute. By it a wife may sue and be sued as if unmarried ; an attachment or judgment may be enforced against her as if she were unmarried; she may defend in her own rig-lit when sued with her husband; “ contracts may be made and liabilities incurred by a wife * * * as if she were unmarried,” except contracts of partnership; she may own in her own right real and personal property obtained by gift, descent or purchase, and may convey the same as may the husband property belonging to him.
There is nothing in all this which forbids her to contract with her husband, and the words are general and broad enough to sanction such contracts. Hot only so, but it is provided in section 9 of the act, that where husband and wife shall be living together no transfer of goods between them shall be valid as against the rights of third persons, unless in writing, duly acknowledged and recorded. This provision necessarily implies that the former broad language of the statute was used in a sense to authorize contracts between husband and wife, and make them effective in all cases for lawful purposes, except in so far as otherwise provided by the act itself. We find nothing in the act limiting her capacity to contract in this regard.
The majority of the court, however, are of opinion that the contract set out in the declaration is, in its essence and character, against public policy, and that it must be held invalid upon that ground. While divorces are authorized by law, they ought not to be encouraged. In this contract there is no express agreement that the husband would not resist the application for a divorce, or that he would consent to a divorce, still, it is thought that to permit such a contract as this to be enforced in the courts, would open a door for the attainment of divorces by collusion, and upon this ground the decision of the court in sustaining the demurrer to the declaration ought to be sustained.
Judgment affirmed.
Concurrence Opinion
I concur in the ruling that the Avife
has full power to contract Avith her husband, subject only to the limitations in the statute. I do not, however, think that we have any warrant for declaring this contract void. It may be, that such a contract may be used to carry out collusion between the parties, and in such'case, if the contract should be held void on that account, the alleged collusion ought to be pleaded and proven. There is no allegation of unlawful collusion in this case, and I think it is not to be presumed. If security against collusion demands that such contracts as this should be held void, it is for the legislature to so provide by statute. The statute has no such provision, and I think the court has no power to legislate upon this question.
Mr. Justice Scholfield : I concur in the conclusion reached in this case.
Mr. Justice Scott : I do not concur in the opinion of the majority of the court.
Mr. Justice Craig : I concur in affirming the judgment.