No. 17675 | Ohio | May 8, 1923
1. In an action in the nature of a creditor’s bill, to nforee collection of a judgment for alimony ob-rined by the wife against the husband, a court of quity has power before enforcing such judgment to lake a conditional decree requiring the wife to make estitution of property obtained in lieu of alimony reretofore agreed upon with her husband, or, if res-tution be not made, enjoin the collection of the adgment for alimony upon the cross-petition of the usband, it being inequitable to permit the wife to nforee the judgment for alimony and at the same ¡me retain the property obtained by the agreement, 'he maxim, “He who seeks equity must do equity,” i applicable. (DeWitt v. DeWitt, 67 Ohio St., 340, istinguished.)
2. When husband and wife, who have been living eparate and apart for some months, enter into an ral agreement of separation and adjustment of roperty interests relative to alimony, support, etc., fliich was to be later reduced to writing and signed, nd the husband performs his part of such agree-lent by conveying to the wife property agreed upon, ven though she refuses to sign the agreement after eing reduced to writing, and the parties continue to ve‘ separate and apart and all martial relations icident to coverture are abandoned, under such eir-umstances communications between the husband nd wife not in the known presence of a third per-ón competent to be a witness concerning such agree-íent for alimony and separation and releasing of ights, claims and duties arising out of their marital elations, are within the spirit of Section 11988, Gen-ral Code, providing that husband and wife are com-etent witnesses in divorce and alimonv cases: and uch communications are not privileged within the terms of paragraph 3, Section 11494, General .Code, making communications between husband and wife during coverture inadmissible.
Judgment affirmed.