Collins v. Collins

• Decision Date: 31 January 1867
• Court: North Carolina Supreme Court
• Parties: ELIZABETH COLLINS v. JOHN M. COLLINS.

62 N.C. 153

93 Am.Dec. 606

ELIZABETH COLLINS

v.JOHN M. COLLINS.

Supreme Court of North Carolina.

January Term, 1867.

*1 Articles of separation between husband and wife, whether entered into before or after the separation, are against law and public policy, and therefore void.

( Elliot v. Elliot, 1 Dev. & Bat. Eq., 57, and McKinnon v. McDonald, 4 Jon. Eq., 1, cited and approved.)

PETITION for dower filed to Fall Term, 1866, of the Court of Equity for WAKE.

The petition states that Mark L. Collins, the husband of the petitioner, died in August, 1863, seized of the land described in the petition, and of which dower is prayed. It further sets forth that, prior to the year 1861, difficulties had arisen between the petitioner and her husband, and they had voluntarily separated from each other, and that in May, 1861, articles of separation were entered into between them, and duly executed by them and one Willie Dodd, as trustee for the petitioner. These articles were filed as part of the petition. After reciting the fact of separation, and an agreement that they should continue to live separate, “On condition that said Mark shall pay for her use and benefit one-third of the value of his estate, to be assigned by commissioners,” the articles state that commissioners selected by the parties had reported the value of the estate, real and personal, of Mark L. Collins, at $2,250, and that Mark executed his bond, with good security, for one-third thereof, to said Willie Dodd, as trustee for Elizabeth Collins; and in consideration thereof she covenanted to relinquish, in case said bond was paid, “all claim upon the real and personal estate of said Mark, which she has now or hereafter may have, by reason of her right of dower or otherwise, and she agrees that her said husband shall not be responsible for her debts contracted or to be contracted, &c.” The defendant, by his guardian, filed a general demurrer to the petition. The demurrer was set down for argument at Special Term of Wake Court, and by consent the cause was transferred to this court.

Rogers & Batchelor, for the petitioner .

Phillips & Battle, for the defendant .

A covenant for separation already agreed on between husband and wife is valid--the parties covenanting through a trustee. Gee v. Thurlow, 9 Eng. C. L. Rep., 174, 2 Bar. & Cres., 547; Carson v. Murray, 2 Paine, (N. Y.) Ch. R., 483.

Wife is put to an election whether she will take dower or retain provision under the articles. Clancy on Rights of Husband and Wite, 230, et seq.; Greenl. Cruise on Real Prop., 194; 7 Yer. (Tenn.) R., 283.

Here the petition may be considered an election; the petitioner should have offered to account for provision since the death of her husband, and the trustee should be a party. Watkins v. Watkins, ubi supra.

READE, J.

*2 It is to be considered for the first time, whether a deed of separation between husband and wife, will be enforced in this court.

The relation of husband and wife is at the foundation of society. It is natural, as well as conventional. It was the relation of the first pair of our race, and has existed ever since. It is universal in civilization, and not uncommon in barbarism. It is indispensable to that other important relation of parents and children. Incident to it are its inseparable and indissoluble characteristics--its oneness--“they shall be no longer twain but one flesh,” “to live together after God's holy ordinance,” “so long as they both shall live.” But little legislation is necessary to define and regulate it. We know it by intuition. It is induced by the strongest passion of the human soul, love. It is the most endeared relation which nature makes, or society forms. When lusts entice, or wealth prompts the relation, it may prove a curse when the one is satiated and the other wasted; but when love, virtuous and disinterested, ardent and mutual, prompts the relation, it is incomparable. Such is the relation as it exists with us. It is formed in perfect freedom. There are no constraints of parents, of custom, or of laws; nor any influences but such as are conducive to its happiness. It is formed in perfect simplicity, and preserved in religious purity. The husband is the stronger, and rules as of right; the wife is the weaker, and submits in gentleness. The frailties of each are excused or forgiven; their sentiments are in unison; their manners in conformity; their interests the same; their joys and sorrows mutual; their children are a common bond, and a common care; and they live, not separately, but, together--the nursery of morality and piety; and the bulwarks of society.

How different from this is marriage, quarrel, separation!--the anomalous condition of a husband without a wife, a wife without a husband, parents without children, and children without parents! Such relations too surely follow deeds of separation. Let it be understood that marriage is only an experiment, to be formed inconsiderately, and broken capriciously; to be put on and off like a garment; that husband and wife may have separate establishments, in which to nurse their hate, and cover their irregularities; that children may be trained to hate one parent or both, and to have the care of neither; and society to have constantly in view the nuisance of their infidelities; and what greater evil can be imagined.

It is to be admitted, that in some of the old governments, passions and vices have fixed this evil upon society. It was unknown to the common law. Roper in his treatise on husband and wife, 2d vol. p. 267, says: “This kind of separation is the offspring of late years, and totally unknown to the common law; and the observation must be...