Gurley v. Gorman

• Decision Date: 15 December 1924
• Docket Number: 24381
• Citation: 137 Miss. 210,102 So. 65
• Court: Mississippi Supreme Court
• Parties: GURLEY et al v. GORMAN. [*]

102 So. 65

137 Miss. 210

GURLEY et al v. GORMAN. ^[*]

No. 24381

Supreme Court of Mississippi

December 15, 1924

Division A

HUSBAND AND WIFE. Settlement constituting part of collusive agreement for divorce held void.

Property settlement constituting part of a collusive agreement between husband and wife for divorce held void because repugnant to public policy.

HON ALLEN Cox, Chancellor.

APPEAL from chancery court of Alcorn county, HON. ALLEN COX Chancellor.

Suit by Mrs. Pearl Gorman against C. B. Gurley, executor, and others. Decree for plaintiff, and defendants appeal. Affirmed.

Affirmed.

B. F. Worsham, for appellants.

There were three and only three questions presented by this record to the court below, and they were: (1) Whether or not the contract was broad enough to exclude the right of inheritance; (2) whether or not the contract was void on account of the consideration not being adequate, and because of the confidential relationship between them as husband and wife; and (3) whether or not the agreement between these parties who were husband and wife was a collusive agreement, for the purpose of getting a divorce.

As to the first proposition, the court below held that the contract was broad enough to take all of appellee's rights which she had acquired by virtue of being his wife. And as to the second proposition, the court below was bound to conclude, as he did, that the relationship between the parties at the time of making the agreement was not the ordinary confidential relationship, but that on account of previous differences between them, they were dealing with each other at arm's length. She knew her rights, she knew as much about him and his affairs at the time of the making of the agreement as she did at the time of his death, or does know; no intimation that any threats of any sort were used in getting her to sign the agreement; no intimation in the record anywhere that any fraud of any sort was practiced on her, or attempted; on the other hand Judge LAMB required Gorman to come to his office with her so that he might know, be absolutely certain, that she understood what she was doing, and that he might be certain that he knew the terms of the agreement between them; the question of whether or not she would be required to get a divorce, or be required to allow him to get a divorce without a contest, did not in the least way enter into the agreement, was no part of it, and was not considered by the parties in arriving at an agreement; she had consulted and retained counsel, and had evidently gotten his advice as to her rights; and we fail to see on what testimony the court below could have gotten the idea that the agreement was a result of collusion between the parties for the purpose of obtaining a divorce. Wyatt v. Wyatt, 81 Miss. 229.

W. C. Sweat, for appellee.

The contention of the appellee is that the agreement, attempted to be set up as a bar to the wife's renunciation of the will, is inadmissible and should have been excluded on the appellee's objection. The alleged release does not prevent the appellee from renouncing the will, and taking her legal share of the estate for the following reasons: First: The alleged release is void because it is clearly shown from all of the evidence that it was executed in furtherance of an alleged agreement entered into for the purpose of facilitating the procuring of a divorce, and is therefore, void as being contrary to law and to the public policy of the state. Second: The alleged agreement cannot operate as contended for by appellant because it does not clearly show that it was the purpose of the agreement to exclude the appellee from inheritance; and before she can be so excluded the agreement must clearly show that it is the intention to so exclude her. It is the universal rule of law that any agreement that is entered into by husband and wife, looking towards the procurement of a divorce by either of them from the other, or which is in any manner intended to facilitate the procurement of a divorce by either of them from the other is void absolutely. "A husband and wife cannot enter into a lawful agreement for a divorce, and the courts unhesitatingly declare illegal as contrary to public policy any contract intended to facilitate or promote the procurement of a divorce." 9 R. C. L., par. 13 p. 254, and authorities there cited; Palmer v. Palmer, 26 Utah 31, 99 Am. St. Rep. 820.

There is no doubt about what the public policy of this state is on the subject, as expressed in the Code chapter on divorce and alimony, and especially as is shown in section 1676, Code of 1906 (section 1418, Hemingway's Code), wherein it is provided that the bill must be accompanied by an affidavit of complainant that it is not filed by collusion with the defendant for the purpose of obtaining a divorce. It is further provided that the bill is not to be taken as confessed, nor the admissions made in the answer to be taken as evidence. This clearly shows that it was the intent of the legislature that no divorce should be granted, except on positive proof of the grounds relied upon, and that no divorce would be granted where there is any...