McCoy v. Flynn

• Decision Date: 19 March 1915
• Docket Number: No. 29873.,29873.
• Citation: 151 N.W. 465,169 Iowa 622
• Parties: MCCOY v. FLYNN ET AL.
• Court: Iowa Supreme Court

169 Iowa 622

151 N.W. 465

MCCOY

v.FLYNN ET AL.

No. 29873.

Supreme Court of Iowa.

March 19, 1915.

Appeal from District Court, Polk County; W. S. Ayres, Judge.

Action upon a written contract signed by T. F. Flynn. After the action was commenced, Flynn died, and his executors were substituted as defendants. An amended petition was filed, stating grounds for attachment, and the Iowa Loan & Trust Company and Ida May Flynn were made parties defendant. All the defendants demurred to the petitions, and their demurrers were sustained. The appeal is from these rulings. Affirmed.Dowell, McLennan & Groesbeck, of Des Moines, for appellant.

R. L. Parrish, of Des Moines, for appellees.

DEEMER, C. J.

The petition alleges that on or about the 17th day of June, 1909, plaintiff and the decedent, Flynn, who had theretofore been betrothed, because of Flynn's breach of agreement to marry the plaintiff, entered into a written stipulation, the terms of which are as follows:

“My Dear Miss McCoy: I will pay you the sum of five thousand ($5,000) dollars on or before June 18th, 1909. And upon receipt of same you will agree to relinquish all further or future claim on me of any kind whatever, except that there is a mutual understanding between us that in case you do not marry before July 1st, 1912, I will on that date pay to you if living a further sum of five thousand ($5,000) dollars. Your acceptance and agreement to this proposition to make its terms binding on each of us from after date of its acceptance and each will abide by same.

Yours very truly,

T. J. Flynn.

Terms and conditions of above letter have been accepted by me this 17th day of June, 1909.

Tella McCoy.”

It is averred that this was accepted in full and complete satisfaction and settlement of all demands and claims of the plaintiff against the said Flynn, occasioned by his breach of promise to marry the plaintiff; that the deceased paid the plaintiff the sum of $5,000 on or about the 17th day of June, 1909, but neglected to pay the $5,000 maturing July 1, 1912. Plaintiff further averred that she did not marry before the date stated, and that she is yet a single woman.

The grounds for attachment, as stated in the amendment to her petition, were that Flynn fraudulently conveyed to Ida May Flynn and to the Iowa Loan & Trust Company substantially all of his property, both real and personal, for the purpose of cheating and defrauding his creditors, and especially this plaintiff.

The demurrer to the original petition was bottomed upon the proposition that the contract upon which the suit is predicated is null and void and contrary to public policy in that it amounted to a restraint upon marriage. The demurrer to the petition for an attachment challenged the plaintiff's right to have such a writ, because of the death of the original defendant and the appointment of executors for his estate. Little is said in argument regarding the correctness of the latter ruling, and it merits little or no attention.

[1] At the time the petition for the attachment was filed, the property of the deceased, Flynn, was in the possession of his executors for the purpose of being administered under his will, and was not subjected to attachment. If plaintiff some time recovers a judgment on her claim, and the executors fail and refuse to bring action to set aside the conveyances, because in fraud of Flynn's creditors, plaintiff might have some remedy; but it would not be by attachment of the property of the deceased, after it had passed to his executors. No authority need be cited upon so plain a proposition. The other question is much more difficult of solution.

[2] The payment of the second $5,000 was not to be made unless the plaintiff did not marry before July 1, 1912. The proposition was accepted by the plaintiff, and, so far as it is possible to make an agreement, it became mutually binding upon the parties thereto. In order to obtain the $5,000, plaintiff was compelled to remain single for something more than three years; notwithstanding how many favorable opportunities she might have for a desirable marriage.

It is hornbook law that contracts in restraint of marriage are illegal, and, as a rule, it makes no difference how long the restraint. Of course there are many exceptions to this rule, some of which will be noticed during the course of the opinion. In some cases it is held that, if the restraint be reasonable, it is not inimical to public policy; but there is nothing in the record showing any reason for the making of the stipulation, and no facts are pleaded, which would justify any such limitation upon the plaintiff's right in morals or in law to take upon herself the relations of a wife, notwithstanding the breach of promise on the part of Flynn. No benefit or advantage to him is shown, but, for reasons known only to him, he made his promise conditional on the fact that his former fiancée should not marry during the three years. The immediate tendency of this promise was to discourage marriage, and, as a rule, that tendency stamps such contracts as illegal. See Bostick v. Blades, 59 Md. 231, 43 Am. Rep. 548;Knost v. Knost, 229 Mo. 170, 129 S. W. 665, 49 L. R. A. (N. S.) 627;Arthur v. Cole, 56 Md. 100, 40 Am. Rep. 409;Conrad v. Williams, 6 Hill (N. Y.) 444;Waters v. Tazewell, 9 Md. 291;Maddox v. Maddox, 11 Grat. (Va.) 804; Hartley v. Rice, 10 East, 22 (Eng.); Sterling v. Sinnickson, 5 N. J. Law, 756. In the latter case the suit was upon a contract which read as follows:

“I, Seneca Sinnickson, am hereby bound to Benjamin Sterling for the sum of one thousand dollars, provided he is not lawfully married in the course of six months from date hereof. * * *”

In speaking of the legality of the contract the court said:

“It has been spoken of, by the plaintiff, as if this were an obligation to pay money upon a future contingency, which any man has a right to make, either with or without consideration, and as if the not marrying of the plaintiff were not the consideration of the obligation, but the contingent event only upon which it became payable. But I think this is not a correct view of the case. Where the event upon which the obligation becomes payable is in the power of the obligee, and is to be brought about by his doing or not doing a certain thing, it cannot be so properly called a contingency; it is rather the condition meritorious, upon which the obligation is entered into, the moving consideration upon which the money is to be paid. It is not, therefore, to be considered as a mere contingency, but as a consideration, and it must be such consideration as the law regards. Nor does it at all vary the case that the restraint and the law has made no limitation as to the time. Neither can the plaintiff's performance, on his part, help him. It imposed no obligation upon the defendant; it was wholly useless to him; the contract itself was void from the beginning.”

In the early case of Low v. Peers (1770) Wilmot, 364, 4 Burr. 2225, Lord Mansfield declared:

Matrimony is “one of the first commands given by God to mankind after the creation, repeated again after the deluge, and ever since echoed by the voice of nature to all mankind.”

See, also, Hartley v. Rice, 10 East, 22; Baker v. White, 2 Vern. 215; Grace v. Webby, 15 Sim. 384.

In Hartley's Case the restraint was for six years, and in Sterling's Case, supra, for six months. In Grace's Case the court said:

“It is most beneficial to a state to have a multitude of subjects; and therefore restraints on marriage are objectionable as being against public policy. A man may make a provision for his wife, and declare that it is considered that a husband has a sort of interest to preserve the viduity of his wife, for the sake of his children. But the grantor of the annuity in the present case could not have had any motive whatever for inserting the proviso in the deed, except that the larger annuity might operate as an inducement to Elizabeth Castle not to marry.”

Many exceptions exist to rules above stated.

There is nothing contrary to public policy for a person having a parental interest in his offspring from restricting marriage along certain lines, as infancy, relationship, and good morals. And agreements not to marry a person under a certain age, or in a certain degree of relationship, or into a certain family, or not to marry a second time, have been held valid. Hogan v. Curtin, 88 N. Y. 162, 42 Am. Rep. 244;Siddons v. Cockrell, 131 Ill. 653, 23 N. E. 586.

In Hogan's Case, supra, it is said:

“A condition prohibiting marriage before 21 without consent is by the common law valid and lawful. It is otherwise of conditions in general restraint of marriage; they being regarded as contrary to public policy and the ‘common weal and good order of society.’ But the reasonable conditions designed to prevent hasty or imprudent marriages, and to subject a child, or other object of the testator's bounty, to the just restraint of parents or friends during infancy, or other reasonable period, are upheld by the common law, not only because they are proper in themselves, but because by upholding them the law protects the owner of property in disposing of it under such lawful limitations and conditions as he may prescribe. Story, Eq. Jur. § 280 et seq., and cases cited. Now it is the general rule of law that a breach of a lawful condition annexed to a legacy either divests it or prevents an estate therein arising in the legatee, depending upon whether the condition is precedent or subsequent. In accordance with this general principle, it was held in Re Dickson's Trust, 1 Sim. (N. S.) 37, a condition subsequent, that the legatee should not become a nun, was valid, and that the legacy was forfeited by breach of the condition, although there was no gift over. But it has been settled law of England for a long period that a condition subsequent annexed to a legacy, in qualified restraint of marriage, although the restraint was lawful and reasonable...