72 P. 3 | Utah | 1903
having made the statement of the case as above, delivered the opinion of the court.
The principal and decisive question in this case is whether the contract pleaded and relied upon by the plaintiffs is valid and bars the widow’s right of inheritance. So far as material here, it reads: “Whereas, irreconcilable differences have arisen between W. D. Palmer and his wife, Ida M. Palmer, and in consequence thereof a permanent separation between them is desirable, and a divorce proceeding is in contemplation and will be instituted by one or the other of said parties, for the legal dissolution of the marriage tie existing; and, whereas, the said W. D. Palmer is willing to make a satisfactory settlement upon and with the said Ida M. Palmer in lieu of all claims for alimony against him, either temporary or permanent.” And then, after mentioning the property the wife was to have, which is the same as that described in the pleadings, and making some stipulations in respect thereof, it concludes: “Now, therefore, this instrument of writing witnesseth the mutual agreement, contract and settlement above described, and the said Ida M. Palmer hereby acknowledges the receipt of said sum of money cash in hand paid by him, the said W. D. Palmer, and in consideration thereof as well as the amounts heretofore received, hereby acknowledges full and satisfactory payment by bim of all claims she has against him, and agrees in consideration thereof to, and does hereby, release him from all liability past, present or future for her support, maintenance or comfort, and they both hereby contract and agree so far as they are by law permitted to do, each for the other, to full and final separation and dissolution of the marriage relation, and all responsi
The appellant, among other things, contends, that this is a contract between husband and wife, entered into for the purpose of procuring a divorce, or of facilitating such a result, and is therefore collusive and void. The respondents insist that it amounts merely to a separation agreement, settling the property rights of the parties, and that it is authorized by the laws of the State of Georgia, where it was made and executed, and should be enforced, through comity, in this State.
Whether or not the contract is valid and enforcible
We are clearly of the opinion that- the contention
The wife, in substance, testified that before the exe-
Further reference to the evidence in detail would be useless, for, like upon the face of the contract, it is clearly shown by the proof that the procuring of a divorce was in the minds of the parties before and at the time the instrument was executed, and was a moving consideration. The fact that the very next day after the execution of the instrument the wife instituted the divorce proceedings is significant, ,as tending to show that she endeavored in good faith to comply with her understanding of the agreement, although, as seems evident, from a careful perusal and consideration of the evidence, she never entered into the contract voluntarily but simply as the victim of circumstances over which she was led to believe she had no control. The record
Moreover, where, as appears in this instance, the parties agree that the one shall bring a suit to dissolve the marriage, and that the other will make no defense, or a mere nominal defense, which is indicated by the context, the agreement becomes collusive and fraudulent, and is without validity.- A contract of this character may be regarded not only as conceived in fraud, but as. a fraud upon the court, and it comes within the reason of the maxim, “ex turpi causa non oritur actio.” Mutual agreement of a male and female who are of the requisite age and capacity may create the marriage relation, but it can never dissolve it. The State being founded upon the family, so high is the marriage status regarded by mankind, so necessary is its permanency to promote the public welfare and private morals, that the State, to every marriage contract entered into within its jurisdiction, makes itself a party, in the sense that it will not permit its rescission or dissolution except for a cause provided by law, the existence of which is to be ascertained by a court of competent jurisdiction, upon evidence regularly submitted, in á proper proceeding instituted in good faith for that purpose. The parties cannot even consent to a decree in open court, nor stipu
It will thns he seen that, viewed and tested by the foregoing principles, the contract in controversy clearly contravenes the policy of the law and is void. Nor
The record in this case is such as impels one to the thought that this is one of the sad, unfortunate cases where liquor, that prince of evil, blasted happy hearts and destroyed a happy home. ■
We are of the opinion that the appellant is not
Having taken the view that the contract is without validity, it is unimportant to discuss the other points presented.
The judgment must be reversed, with costs, and the cause remanded to the court below, with directions to set aside the present findings of fact and the decree, and enter findings of fact and a decree in accordance herewith, in favor of the appellant. It is so ordered.