Eschner v. Eschner

• Citation: 131 S.E. 800
• Parties: ESCHNER . v. ESCHNER.
• Decision Date: 25 February 1926
• Court: Supreme Court of Virginia

131 S.E. 800

ESCHNER .

v.ESCHNER.

Special Court of Appeals of Virginia.

Feb. 25, 1926.

Appeal from Circuit Court, Arlington County.

Suit by Marie E. L. Eschner against J. F. Paul Eschner. Decree for plaintiff, and defendant appeals. Affirmed.

Frank L. Ball, of Clarendon, for appellant.

Carlin, Carlin & Hall, of Alexandria, for appellee.

CHINN, J. This is a suit in equity brought by the appellee, Marie E. L. Eschner, against the appellant, J. F. Paul Eschner, to enforce the provisions of a contract entered into between the parties, who were then husband and wife, for the settlement of property rights. The contract in question, which is in writing and bears date as of February 24, 1920, first recites that a divorce proceeding instituted by the husband was at the time pending, and the parties desired to make a property settlement "in lieu of a court settlement and in lieu of alimony." By its terms the husband then agreed, in substance, as follows: First. To assign to his said wife a certain fund of 150, 000 German marks then in the hands, for investment, of one Anna Lindemuth, of Lunzenau, Germany. Second. In event said fund should be lost in whole or in part, through bad investment or through the collapse of the German government, on or before July 1, 1925, to substitute therefor the sum of $6,000, or so much thereof as might be necessary to replace said fund. Third. To execute and deliver to his said wife his promissory note for the sum of $4,000, payable on or before July 1, 1925, without interest, and, in order to secure the payment of said note, to assign and deliver to his wife a certain endowment policy in the Metropolitan Life Insurance Company, and to deposit with the Munsey Trust Company, of Washington, D. C, the sum of $834, to be applied in payment of the annual premiums on said policy as they should become due during the period of the next succeeding five years. Fourth. To pay the said wife "an annuity" of $1,800 a year, payable in quarterly installments in advance, "in lieu of alimony"; said payments to be made by depositing the sum of $450.00, to the credit of the wife, with the Munsey Trust Company, on July 1, 1920, and each three months thereafter until the remarriage of the wife, or the death of either party.

The fifth paragraph of the agreement provides for the collection by the wife of the life insurance policy in event of the death of the husband on or before July 1, 1925, and the application of the proceeds to the payment of the $4,000 note, and such deficiency in the fund of 150, 000 marks as may have been caused through bad investment or the collapse of the German government. By the sixth and last paragraph the wife agreed to relinquish all her rights, interest, and claim, "including dower interest, " in all the real and personal property which the husband then owned or might thereafter acquire.

The pleadings in the case raise several questions of law and of fact, and several assignments of error are presented in the petition for appeal; but, as counsel for the appellant has expressly waived all of said assignments save one, it can serve no purpose to state the pleadings and facts contained in the record except in so far as the same seem to be pertinent to the question we are called upon to decide.

It appears from the pleadings and the proofs that three days after the above contract was executed the appellant was granted a divorce from the bonds of matrimony from appellee on the ground of willful desertion, and afterwards remarried; that at the time of the agreement appellant owned property worth $35,000 or $40,000, and had an income exceeding $10,000 a year, but at the time of the institution of this suit, on account of business reverses, the only property he owned was the house he occupied, worth about $15,-000, subject to a mortgage of $12,000, and his income had been reduced to $3,000, derived from a salary. It also appears that when this suit was instituted appellant had not made any payment on account of the annuity provided for by the fourth paragraph of said contract since the 1st day of October, 1921, and upon the hearing of the cause on the 16th day of June, 1924, the court entered a decree requiring appellant to pay the appellee the sum of $4,500; same being the total amount of said annuity at that date in arrears and unpaid.

It is contended by appellant's counsel that there is no consideration for the agreement on the part of appellant to pay to appellee the annuity stipulated in the fourth paragraph of the contract, and the same is, for that reason, invalid and unenforceable; and this is the single question presented for the consideration of this court.

The substance of the argument in support of this contention is, as we understand it, that the contract is severable and not entire with respect to the consideration, in that the only...