Schmieding v. Doellner

10 Mo. App. 373 | Mo. Ct. App. | 1881

Lewis, P. J.,

delivered the opinion of the court.

In January, 1865, Henry Doellner instituted a suit against his wife, Meta, who is the present plaintiff’s cestui que trust, for a divorce. On April 3, 1865, an interlocutory judgment by default was entered in his favor. . On April 8, 1865, an instrument in writing was executed by and between Doellner and the plaintiff Schmieding, as trustee for Meta, whereby Doellner bound himself to pay to Schmieding $325 per annum, in quarterly instalments, during the natural life of the said Meta, for her separate use and benefit, upon the" consideration that the same should be received and accepted by her in full satisfaction of all claims which she might have upon the said Henry Doellner, for support and maintenance, or alimony of any kind. This instrument was signed and sealed by both parties. Its obligations were further secured by a deed of trust executed by Doellner to Schmieding, conveying a house and lot in St. Louis, with authority given the grantee to sell in certain contingencies, and making certain provisions for the benefit of his three children, born of the said Meta, upon the event of her death, he not surviving. A final decree of divorce was ‘entered in November, 1865. Henry Doellner died in 1879, and the defendant is his executrix. He had paid all the quarterly instalments under the agreement, except the last which fell due in his lifetime; and the object of this proceeding is to recover the amount remaining in arrear when it was commenced. The Circuit Court gave judgment for the plaintiff.

It is contended for the defendant that the agreement was void, as against public policy. The cases cited'in support of this position all show that any agreement entered into between husband and wife, pending á suit for divorce, or in contemplation of such a suit, whose force and effect are in any way made to depend upon the result of the suit, will be held void, because of the motive or inducement which it offers for either a passive consent, or active aid, in promoting the consummation of the divorce. There may be no direct evidence of collusion for that specific purpose. It is sufficient to vitiate the agreement, if it be so framed that, in order to an enjoyment of its beuefits by one party or the other, a decree must supervene. The law will sustain no act whose tendency, whether such be its purpose or not, is towards promoting dissolution of marriage. Moon v. Baum, 58 Ind. 194; Muckenburg v. Holler, 29 Ind. 139; Daggett v. Daggett, 5 Paige, 509; Belden v. Munger, 5 Minn. 211; Sayles v. Sayles, 21 N. H. 312; Speck v. Dausman, 7 Mo. App. 165. In this case, however, none of these vitiating elements appear. The agreement was made by the husband with a trustee. Its obligation to pay was absolute, and fettered with no condition to arise out of the divorce. Whether this should be granted or refused, made no difference whatever. In fact, an interlocutory decree had already been entered; so that all the.rest depended upon the final proofs that Doellner might present, and not upon anything that his wife could do or refrain from doing. The consideration for the undertaking was legal and sufficient. It was continually acquiesced in by the obligor, and ratified by his successive payments, through a period of more than fourteen years. We cannot find in these incidents, or any of them, the least reason for doubting that the agreement in question was, in all respects, valid and binding as made between the parties. The judgment is affirmed.

All the judges concur.