60 P. 731 | Kan. | 1900
Lead Opinion
The opinion of the court was delivered by
The validity of the post-nuptial agreement by which a division of the property was effected is the controlling question in the case. Under our statute the wife is capable of contracting with her husband, and it has been held that the conveyance of property directly from one to the other will be upheld so far as it is equitable to do so. (Munger v. Baldridge, 41 Kan. 236, 21 Pac. 159.) In Kansas there are not the obstacles to a contract between husband and wife that exist in some of the states, nor is there the same necessity for the intervention of a trustee in conveying or transferring property from one to another. Marriage settlements controlling the division and affecting the descent of property, which are intelligently made and are just and equitable in their provisions, are sanctioned by the courts. (Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537.) The settlement in the present case appears to have been intelligently made, as the parties had the advice and assistance of able lawyers ; and that its provisions are fair, reasonable and just to both of the parties is not open to dispute.
The contention here is that the contract of the spouses was a usurpation of the power conferred on the courts alone, and an attempt to abrogate the marriage contract, and for that.reason must be held a nullity. It is true that the contract was made in contemplation and in the execution of an immediate
“It is contended that deeds of separation between husband and wife cannot be upheld, because it is against public policy to allow parties who sustain that relation to avoid their duties and responsibilities by entering into an agreement which contemplates a partial dissolution of the marriage contract. If the question were before us, unaffected by decision, it would present difficulties, for it cannot be doubted'that there are serious objections to voluntary separations between married persons. But contracts of this nature for the separate maintenance of the wife, through the intervention of a trustee, have received the sanction of the courts in England and in this country for so long a period of time that the law on the subject may be considered as settled.”
In Randall v. Randall, 37 Mich. 563, Judge Cooley, in voicing the decision of the court, said:
“It is not the policy of the law to encourage such separations, or to favor them by supporting such arrangements as are calculated to bring them about. - It has accordingly been decided that articles calculated to favor a separation which has not yet taken-place will not be supported; (Durant v. Titley, 7 Price, 577; St. John v. St. John, 11 Ves. 526; Westmeath v. Westmeath, Jac. 126,) but when a separation has actually taken place, or when it has been fully decided upon, and the articles contemplate a suitable provision for the wife and children, or an equitable and suitable division of the property, the benefits of which both have enjoyed during the coverture, no principle of public policy is disturbed by them.”
Among the other authorities sustaining separations the following may be cited : Compton against Collinson, 2 Brown’s Ch. 377 ; Worrall v. Jacob, 3 Merrivale, 266 ; Jee v. Thurlow, 2 Barn. & Cr. 547 ; Webster v. Webster, 23 Eng. L. & Eq. 216; Carson v. Murray, 3 Pai. Ch.
It was not alleged or proved that there was any fraud or collusion in making the contract, or that it resulted from the mutual caprice of the parties. The separation was simultaneous with the execution of the contract, and hence it is not to be regarded as' an agreement to break the conjugal relation at some future time. It is argued that the stipulation that the husband shall “stay away from his wife's place and not molest her or trespass on her premises ” in effect provided against a reconciliation between the parties or a resumption of the marital relations. We do not view it in that light. It was in effect a stipulation that thereafter he should not annoy or molest her. His conduct toward her had been such as to make it necessary that they should live apart. Her health and happiness required a separation, and the provision quoted was no more than a stipulation that there should not be a recurrence of the conduct which made separation necessary. There was an understanding, it is true, that a divorce would be obtained, and it is contended that to that extent at least it conflicts with public policy. An understanding that the separation,
There is another contention that the rights of the heirs were not established because it was not expressly proved that the mother of Martha Bartel was not living. The case was tried on the theory that the line of descent was through the father of Martha Bartel, Charles Mollohan, and he died in 1890. Although it is not specifically shown that the mother of Martha Bartel was dead, the case proceeded on the theory that the defendants in error, her brothers and sisters, were the only heirs, unless John J. Bartel can be re
The final claim that the heirs are barred by the decision and judgment rendered before the first-review of the case in this court is not sound. The ruling on the demurrer was sustained, but the judgment on the pleadings was reversed and set aside. While the petition of the plaintiffs in error in that proceeding was upheld so far as the claim of King, Kelly and Carpenter under Hawley was concerned, the answer contained a general denial, and for that reason the demurrer was overruled. When the case was remanded it stood upon an issue of fact ready for trial. The first judgment was not a bar to a trial of the issues made by the pleadings as they then stood or as subsequently amended. An examination of the record satisfies us that the doctrine of res judicata is not applicable, and that the defendants in error were not estopped to claim and show the title alleged in the pleadings.
The judgment of the district court will be affirmed.
Rehearing
REHEARING. (JuJy 7, 1900.)
A rehearing in this case was ordered because we assumed that a certain finding copied in the record was part of the same. It now appears that after the finding had been filed a motion to strike out the fourteenth finding was made and sustained. That finding was to the effect that the conduct of John J. Bartel toward his wife was such as to render a separation necessary for the health and happiness of the wife. Although the motion was sustained, the find
The absence of the finding, however, does not invalidate the post-nuptial contract, nor warrant a change in the ultimate decision of the case. The specific finding that the husband and wife were incompatible, and that a separation was necessary to the health and happiness of the wife, was cited to show that the separation was not collusive, or fraudulent, or violative of public policy. We did not hinge the decision, however, on this finding, as a reading of the testimony sufficiently shows the absence of collusion and fraud in the separation, as well as in the agreement for the division of property; and this is sufficient to sustain the general finding. A separation between the parties had been fully decided upon, and the agreement which was “ made contemplated and was followed by an immediate separation. The facts show, and the court found, that the adjustment of the property rights under the agreement was fair, reasonable, and just, and it was held in Randall v. Randall, 37 Mich. 563, and other cases cited in the former opinion, that when a separation “has been fully decided upon, and the articles contemplate a suitable provision for the wife and children, or an equitable and suitable division of the property the benefits of which both have enjoyed during coverture, no principle of public policy is disturbed by them.”
We are satisfied with the views taken and already expressed as to the stipulation that the husband should stay away from his wife’s place and not molest her
The judgment of affirmance will not be disturbed.
