Hart v. Hart

• Decision Date: 13 June 1935
• Citation: 180 S.E. 307
• Parties: DE HART. v. DE HART et al.
• Court: Virginia Supreme Court

180 S.E. 307

DE HART.

v.DE HART et al.

Supreme Court of Appeals of Virginia.

June 13, 1935.

Appeal from Circuit Court, Patrick County.

Suit by Mollie J. De Hart against I. C. De Hart and others. From a decree, plaintiff appeals.

Affirmed.

Argued before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, BROWNING, CHINN, and EGGLESTON, JJ.

R. E. Woolwine, of Stuart, and Hoge & Austin, of Roanoke, for appellant.

F. P. Burton, Hooker & Hooker, and W. L. Joyce, all of Stuart, for appellees.

CAMPBELL, Chief Justice.

This appeal involves a controversy between Mollie J. De Hart, appellant, who was the wife of I. C. De Hart, and I. C. De Hart, Patrick County National Bank, the First National Bank of Stuart, Va, H. M. Moir, F. P. Burton, trustee, J. M. Hooker, trustee, Alice Thompson De Hart, and J. H. De Hart, appellees, as to the alleged priority of liens against the real estate of I. C. De Hart.

Appellant and I. C. De Hart were married on the 14th day of May, 1891. They lived together until the 2d day of February, 1928, when, as shown by the record, I. C. De Hart left his home, and marital relations were never resumed.

On the 11th of February, 1931, appellant and De Hart entered into this agreement:

"This agreement, made this the 11th day of February, 1931, by and between I. C. De Hart, party of the first part and Mollie J. De Hart, party of the second part, both of Patrick County, Virginia,

"Witnesseth:

"That, whereas, unfortunate differences have arisen between the parties hereto, who are husband and wife of each other; and, whereas, in consequence of said differences, they have, for some time past, lived separate and apart from each other, and intend to so live separate and apart from each other for the remainder of their natural lives:

"Now, therefore, in consideration of the premises, and for the purpose of settling the property rights of the parties hereto, said parties do hereby covenant and agree with each other as follows:

"(1) The party of the first part doth hereby agree to pay the party of the second part the following sums of money and to deliver to her the following personal property:

"(a) The sum of Fifty ($50.00) Dollars per month during her life, payable on the first day of each month hereafter, the first of which installments shall fall due on the first day of March, 1931, and the remaining installments on the first day of each month thereafter.

"(b) The sum of Four Thousand Five Hundred ($4,500.00) Dollars, in evidence of which the party of the first part has this day executed his negotiable, promissory note to the order of the party of the second part, payable on or before five years after date, with interest from date.

"(c) The sum of Five Hundred ($500.-00) Dollars for the use and benefit of the attorneys representing the party of the second part.

"(d) The party of the first part further agrees to deliver to the party of the second part his Chevrolet sedan automo-bile, with the title registered in her name and the license on same fully paid for the year 1931.

"(e) The party of the first part further agrees that the party of the second part shall take from the home at Hartville, Virginia, such items of personal property as may belong to her, and such items of food, including canned goods as she may desire.

"(2) It is further understood and agreed that the payment of the sums above mentioned shall be secured by a deed of trust, bearing even date herewith on certain real estate in Patrick County, Virginia, belonging to the party of the first part.

"(3) The party of the second part shall accept the sums above mentioned in full discharge of all claims of whatever nature which she may have against the estate of the party of the first part arising out of the marital relation existing between them, whether such claims arise by way of dower, distributive share, inheritance or otherwise, it being the intention of the party of the second part, by this agreement, to relinquish, release and forever quitclaim any interest which she may now have or may hereafter acquire by reason of said marital relation against the party of the first part, or his estate, whether now in existence or hereafter acquired. And to effectuate the purpose and spirit of this section she hereby covenants and agrees that she will execute such papers as may be requisite to facilitate the conveyance or transfer of any of first party's property so that he may freely deal with same.

"(4) And in consideration of the premises the party of the first part doth hereby relinquish, release and forever quitclaim unto the said party of the second part, her heirs and assigns any interest which he may have, or may hereafter acquire in and to the estate of the party of the second part, whether such claim or interest may arise by way of curtesy, distributive share, inheritance, or otherwise, and whether said estate be now in existence or be hereafter acquired. And to effectuate the purpose and spirit of this section, the party of the first part hereby covenants and agrees that he will execute such papers as may be requisite to facilitate the conveyance or transfer of any of second party's property so that she may freely deal with same.

"(5) And the parties hereto do mutually covenant and agree with each other that in the event that a suit for divorce should be hereafter instituted by either party hereto, neither party will pray the Court for any allowance of any nature by way of alimony, suit money, costs or attorney's fees.

"In witness whereof the parties hereto have hereunto set their hands and seals, in duplicate, on this the day and year first above written.

"I. C. DeHart [Seal]

"Mollie J. DeHart [Seal]"

Pursuant to this agreement, De Hart executed a trust deed on the two farms mentioned in the agreement, which he valued at the sum of $8,000. Immediately after the execution of the agreement and deed of trust appellant instituted a suit for divorce, on the sole ground of desertion. The prayer of the bill was that complainant be granted an absolute divorce, and that the "property rights of each in and to the property of the other both present and contingent be annulled and abrogated * * *." It is to be observed that no request for alimony was made.

Upon the final hearing on the 6th day of March, 1931, the court, after decreeing a severance of the matrimonial bonds, proceeded according to the prayer of the bill to adjudicate the property rights of the parties. This adjudication is set forth in the decree as follows:

"It further appearing to the court that the plaintiff and defendant have by an agreement in writing entered into and duly acknowledged dated the 11th day of February, 1931, settled all questions relating to their property rights arising from their marriage, which said contract of separation is recorded in the Clerk's Office of Patrick County, Virginia, Deed Book 60, page --, and said agreement appearing to be reasonable and fair, it is hereby approved and confirmed by the court. And it is ordered and decreed by the court that all of the rights present or future, including contingent rights of dower and curtesy of either in and to the property of the other is hereby annulled, and abrogated, in conformity...