Montgomery v. Montgomery, No. 3833

No. 3833 | Ga. | Dec 12, 1923

Beck, P. J.

(After stating the foregoing facts.) It is evident that the court, in allowing the amounts specified as alimony and attorney’s fees, treated the contract between the husband and wife, which is set forth in the statement of facts, as null and void; and the question is whether, under the evidence in the record, the court could properly decide that the contract was void.

We cannot say that the court erred in holding the contract void. Where husband and wife have separated and agreed to live apart, or where they have determined’ upon a separation, a contract making provision for the support of the wife in lieu of alimony and by the terms of which the husband is released from all obligations growing out of the marital relation will be upheld, and will not be set aside because the amount agreed upon for her support and maintenance is inadequate. In order to set aside such a contract it must be made to appear that the contract was procured by fraud, coercion or duress. Civil Code, §§ 4112, 4255, 4129. These sections relate to sales, and fraud in the contract of sale; but the principles are applicable to the contract which we have under consideration. In section 4129 it is declared that “Inadequacy of price is no ground for rescission of a contract of sale, unless it is so gross as combined with other circumstances to amount to a fraud.” And in Hoyle v. Southern Saw Works, 105 Ga. 123 (31 S.E. 137" court="Ga." date_filed="1898-07-23" href="https://app.midpage.ai/document/hoyle-v-southern-saw-works-5568468?utm_source=webapp" opinion_id="5568468">31 S. E. 137), it was said: “As a general rule, inadequacy of price alone will not be sufficient to set aside a contract; yet that circumstance, taken in connection with others of a suspicious nature, may afford such a vehement presumption of fraud as would authorize the court to set it aside.” It seems here that the sum allowed the wife in consideration of her release of the husband from all obligation is so totally inadequate that we ought to look to all the circumstances under which this contract was signed. That there is great inadequacy of consideration is apparent. The court could take the testimony of the wife as absolutely true; and if that be true, she was practically being driven from her husband’s home. She was greatly excited and agitated and in tears. The husband told her that she could take the small sum offered in full settlement of all claims she had upon him, or she could take nothing other than the price, of a ticket home. She says he told her that the sum offered was half of what he had. He said in his testimony that it was half of the money that he had. But if he had only $250 in money, half of that amount *was not necessarily half of all that he had; for he had his ability to labor and earn; and if he had not a cent in cash and the wife was entitled to alimony, she had a claim upon his ability to labor and acquire property. If in cases of sales, where the parties are dealing at arms’ length, inadequacy of price, coupled with other circumstances, may amount to fraud, as held in the case last above cited, surely in a case like this, where a husband tells, the wife from whom he is about to separate that she can take what is offered or take nothing, and makes that statement to her while she is hardly in condition to appreciate her surroundings and the bearing of what is said upon the transaction into which she is entering, these circumstances may be taken into consideration in connection with the inadequacy of the sum offered, in determining whether or not the contract was a fair contract and whether or not it was tainted with fraud and even duress. In the case of Wormack v. Rogers, 9 Ga. 60, it was held that “Inadequacy of price, as a general proposition, will not, per se, be a sufficient ground to set aside a conveyance in a court of equity; yet that circumstance, taken in connection with others of a suspicious nature, may afford such a vehement presumption of fraud, as will authorize-the court to set it aside.”

All the facts and circumstances considered, we conclude that the judge had before him sufficient evidence to authorize the judgment rendered; and it is therefore affirmed.

Judgment affirmed.

All the Justices concur, except Gilbert, J., disqualified.