Sayles v. Sayles, 21 N.H. 312

Sayles v. Sayles

21 N.H. 312 | Superior Court of New Hampshire | 1850

Woods, J.

It is alleged on the part of the defendant, that the consideration upon which the promise in the note declared on rests, was illegal, as being against public policy, and that the note is void for that cause. The note was given upon the consideration, and was to be paid only upon the condition, that the wife of the defendant would withdraw all opposition to the petition of the defendant for a divorce pending at the time against her, in this Court. It may well be inferred from the fact of the agreement, that it was the belief of both parties, that no divorce would or could properly have been granted, if full defence had been made, and that the arrangement made, resulted from that view of the case; and the facts disclosed by the testimony of the counsel of the libellee fully sustain this view. That witness testifies, that the cause of divorce alleged in the petition, was desertion, as he thought, and that, “ he thought he could prove her to be one of the most amiable women in Grafton, and that her husband abused her without measure.” It was opposition upon this ground, that was no longer to be insisted upon, but *317was to be withdrawn, and was withdrawn, as the consideration of the note in question, and it is quite obvious, that Mrs. Sayles must have believed that her ground of opposition would, if persisted in, and made out in proof, have been entirely sufficient. She could hardly have failed to have received such advice from the learned counsel who had been employed to make her defence. Desertion forms no legal ground of divorce, unless it be without sufficient cause,, and it could scarcely.be said, that an amiable woman, “ abused without measure,” had no such cause for deserting her husband.' The evidence in this case, pretty fully establishes, indeed we see not how it establishes any other, than a case of collusion between the parties, to obtain a divorce at the hands of the Court, when both parties knew, or had good reason to believe, that no sufficient legal cause existed. No such agreement, even if executed, can form a valid consideration for either a verbal or written promise. The great and principal object of the agreement made between the parties, was to bring about a dissolution of the marriage contract, and to put an end to the various duties and relations resulting from it. Any contract, having any such purpose, object, and tendency, cannot be in law sustained, but must be regarded as being against sound public policy, and consequently illegal and void. The marriage relation is one to be encouraged and maintained, when formed. Such is the well-settled policy of the law; and its dissolution or determination is not to be left to depend upon the caprice of the parties. If determined, it must be done in accordance with some positive enactment of law and in due course of judicial proceedings. The good order and well-being of society, as well as the laws of this State, require this. The collusive character of the proceedings disclosed in this case, if brought to the knowledge of the court, would have furnished abundant and conclusive reasons for denying the prayer of the petition. The decisions in England and in this country, have gone the length of upholding contracts having for their object the separation of husband and wife, a mensd et thoro, and providing for a separate allowance for the wife, through the intervention of a trustee, in cases where the parties are already living separately, or where *318the agreement is that the separation shall take place immediately. Such contracts for separation and a separate maintenance have been sanctioned by many early English decisions, and the same doctrine has been followed by several American cases. Jee v. Thurlow, 2 Barn. & Cress. 547; Rex v. Mead, 1 Burr. 542; Rodney v. Chambers, 2 East, 297; Carson v. Murray, 3 Paige, 483; 14 Ohio Rep. 256; Baker v. Barney, 8 Johns. 73; Shelthar v. Gregory, 2 Wend. 422; 5 Bos. & Pull. 148; 1 Salk. 116.

In delivering the judgment of the court, in the case of St. John v. St. John, 11 Vesey, 525; and Westmeath v. Westmeath, Jacob, 126; and again in Westmeath v. Westmeath, in the House of Lords, as reported in Dow & Clark, 544, Lord Mdon freely expressed his opinion, that public policy forbade any agreement for a separation between husband and wife, except under the sanction of a court of justice. Mr. Chancellor Walworth, in Carson v. Murray, 3 Paige, 483, although he felt himself bound by the authority of the early decisions, which recognize the validity of such agreements for a separate maintenance, declared his unwillingness to extend the principle beyond the adjudged cases. Mr. Chitty says, that “an instrument which contemplates and provides for the future separation of husband and wife, or is calculated to promote a future separation, is not legal.” Chitty on Contracts, (5th Am. ed.) 672. The case of Westmeath v. Westmeath, Jacob, 126, before cited, fully recognizes the doctrine as laid down by Mr. Chitty. In Durant v. Tilley, 7 Price, 577, it was determined that articles of agreement which hold out a premium for a separation, are not to be sanctioned, being considered as directly contrary" to the policy of the law. So a sealed bill, promising to pay a sum of money, provided the, obligee is not lawfully married within six months from the date, was holden to be illegal and void. Sterling v. Simmickson, 2 South. Rep. 756.

The cases cited, show with what strictness and care the law guards and upholds the marriage relations; and.that no contract, having for its object their dissolution, or calculated to disturb them, can be sustained. In this State at least, a separation *319a vinculo, can only be effected through a decree of the courts of law. No agreement of the parties can have the effect. Sound policy as well as the established law forbids it, and any agreement made in fraud of the purposes of the law, and against its policy, is illegal and void. The note under consideration, was clearly a contract resting on no other foundation than such an agreement. It must, as has already been suggested, have been well understood by all who took part in the transaction out of which the note sprung, that if the facts of the case were brought to the knowledge of the court, no decree of divorce would be granted. By the agreement, the evidence of the facts touching the cause alleged in the libel, was to be suppressed, and was suppressed ; and the divorce was by that means obtained in a case where, by law, and according to law, it could not have been done. And now, as the fruits of this collusive and fraudulent imposition upon the law and the court granting the divorce, the plaintiff asks the aid of this Court, in enforcing the contract of the defendant. We are, however, aware of no principle of law or justice that will warrant the Court in aiding a party, by its judicial action, to gain possession of what can only be regarded as the fruits of a palpable fraud, practised both upon the law and the court that administered it.

There was no fact in dispute upon the evidence in this case. The case presents nothing but a question of law arising upon an uncontradicted state of facts. There was nothing, then, to be submitted to the jury, and the direction of a verdict for the defendant, by the court below, was well authorized by the practice in this State.

Judgment on the verdict.