154 N.E. 146 | Ill. | 1926
November 28, 1921, Clifford E. VanKoten and Ida VanKoten, residents of Champaign, being husband and wife and the parents of a child aged seven years, entered into a written agreement which, after reciting that the parties thereto had ceased to live and cohabit together as husband and wife and that it was the desire of the parties to arrange their property interests so that each might relinquish and surrender any and all rights and interest which he or she might have or claim in the property of the other and the wife to relinquish any rights which she might have to future support and maintenance from the husband, provided that for and in consideration of the premises and of the sum of $3000 in hand paid by Clifford E. to Ida VanKoten, and of the deliverance to her of all the household goods and furniture contained in the dwelling house formerly occupied by them and the payment of all bills for family expenses then outstanding, she thereby released to him all claims, rights, title or interest from making any claim for support or maintenance in any manner from him. It was further agreed that VanKoten should pay to his wife the sum of $20 on the first of every month for the care and support of the child, which payments were to continue as long as the child should be in her custody. It was further agreed between the parties that in consideration of the division and adjustment of the properties, each agreed to and did thereby relinquish any and all future rights which he or she might acquire in any property of the other by reason of the marriage relation, and that in case any such right or interest arose thereafter, each of the parties *325 agreed to execute and deliver, on request, any and all instruments of conveyance to relinquish such right. After the signing of this agreement VanKoten paid to his wife the sum of $3000 and delivered to her the household goods and furniture mentioned in the contract and paid to her each month the sum of $20 for the support of the child. Thereafter Ida VanKoten filed her bill in chancery in the circuit court of Champaign county against Clifford E. VanKoten, A.L. Schilling and Lottie Schilling, praying that certain deeds signed by her and VanKoten to the Schillings should be canceled and set aside, and that the agreement of November 28, 1921, between her and VanKoten should be set aside and canceled and that he should be required to pay to her a just proportion of the property accumulated during their married life and to make reasonable provision for the support of herself and child, and for general relief. VanKoten answered, denying her right to the relief sought. The other defendants did not answer and took no part in the case. The cause was referred to the master in chancery, who took the evidence and found against the complainant and submitted his findings of law and fact. Objections to his findings being overruled, by stipulation the objections stood as exceptions to the master's report. The court affirmed the master's report and dismissed the bill for want of equity. The record is now before this court for review upon writ of error.
It is contended by plaintiff in error that the decree should be reversed because the contract and the deeds signed by her were procured by fraud, and that, even if the agreement had been fairly entered into without fraud or concealment, it was void for the reason that it states that its purpose is "to relinquish any rights which the party of the second part may have to the future support and maintenance from the party of the first part."
The law in this State is well settled that a husband and wife may by a written post-nuptial contract, based upon a *326
valuable consideration, release to each other his or her rights in the other's property and estate, and thereby extinguish all rights, including the inchoate right of dower. (Kohler v.Kohler,
Marriage is a civil contract to which there are three parties, — the husband, the wife and the State, — and it is regarded as a status based upon public necessity and controlled by law for the benefit of society at large. (Leland v. Leland,
It is contended by defendant in error that when a party discovers fraud has been practiced upon him in making a contract he should tender what he has received under the contract as a condition to its rescission, and that in this case Ida VanKoten has not returned the $3000 received by her or made a valid or sufficient tender thereof. This contention as to the law is correct. (Mitchell v. Mitchell,
The agreement between the VanKotens being contrary to public policy and void, the circuit court erred in holding it to be a valid agreement and in dismissing the bill for want of equity. The decree of the circuit court is therefore reversed and the cause remanded.
Reversed and remanded. *328