King v. Mollohan
| Decision Date | 07 April 1900 |
| Docket Number | 11,532 |
| Citation | 60 P. 731,61 Kan. 683 |
| Parties | R. L. KING v. MORGAN MOLLOHAN et al |
| Court | Kansas Supreme Court |
Decided January, 1900.
Error from Marion district court; O. L. MOORE, judge.
STATEMENT.
THIS is a proceeding involving the validity of conveyances and encumbrances of land formerly owned by Martha Bartel, and for a partition of the land among those claiming to inherit it. Prior to February 25, 1893, John J. Bartel and Martha Bartel were married, and had lived together as husband and wife. They were incompatible, however, and the conduct of John J Bartel toward his wife was such as to render a separation necessary for her health and happiness. On the day mentioned they made a post-nuptial agreement, embraced in four instruments of writing, which was, first, a relinquishment from Martha Bartel to her husband of all right, title and interest in his property; second, a relinquishment by John J Bartel of all his contingent interest in his wife's property as husband and heir; and two trust deeds intended to transfer the lands from one to the other. The portion of the contract affecting the lands in question, and by which John J. Bartel undertook to relinquish his interest, in substance provided that in consideration of $ 3900 paid to him by Martha, his wife, he released her and her estate from any claims he had on them by reason of being her husband, and authorized her to dispose of it free from any claims, either immediate or contingent, which he had in the property. He stipulated that he would never at any time claim any of that property or any other that she might acquire, and consented and agreed to abide by any will which she had made or might make, and that she might devise and dispose of her property without consulting him; and he then and thereby ratified and confirmed any will which she had made or might make. He stipulated that he would sign any and all conveyances made by his wife without remuneration, and transferred and released all interest in the personal property which she had. It was agreed that the settlement was made in view of a peaceable separation, and he specifically agreed "to stay away from his wife's place and not molest her or trespass on her premises." About the time this contract was made there was an understanding between the parties that after the separation a divorce was to be obtained by John J. Bartel which his wife would not resist, but, under the advice of counsel, no mention was made of this understanding or agreement in the written contract.
Immediately after the agreement the Bartels separated, and never afterward lived together or assumed the relations of husband and wife, nor did John J. Bartel during the lifetime of his wife assert any right to or interest in any of the property relinquished or which was owned by Martha Bartel. She died in 1894 intestate, without children, leaving as her only heirs seven brothers and sisters. Subsequently to her death, John J. Bartel executed a quitclaim deed to the lands in question to Lulu Carpenter. T. O. Kelly, R. L. King and W. H Carpenter obtained a conveyance and claimed title through Cyrus B. Hawley, who was the husband of the adopted daughter of Martha Bartel. A child had been born to Hawley and his wife, and both the child and the mother died prior to the death of Martha Bartel. In this action the brothers and sisters of Martha Bartel set up their interests in the land in question, asked that the claim of title made by Kelly, King and the Carpenters be adjudged void, the conveyances set aside, and the cloud cast upon the title removed. They also asked for a partition of the land among the actual owners thereof.
To the answer which Kelly, King and Carpenter filed there was a demurrer, which was overruled, and, the demurring parties having elected to stand upon the demurrer, judgment was given in favor of Kelly, King, and Carpenter, awarding them the land in controversy. That decision was brought to this court for review, where it was held that as the answer contained a general denial the demurrer was properly overruled. It was also held that the claim of title under Cyrus B. Hawley was not good, and that the affirmative judgment rendered by the court was erroneous. To that extent the judgment was reversed and the cause remanded for trial as though no judgment had been rendered. (Mollohan v. King, 58 Kan. 816, 50 P. 881.) After the cause was remanded to the district court, Lulu Carpenter conveyed by quitclaim deed to R. L. King all the interest which she had in the property, and thereafter King filed a supplemental answer setting up his alleged title through transfer from Lulu Carpenter. No claim was thereafter made by Kelly, King or Carpenter under the conveyance from Hawley, and the cause was tried solely on the issue made by the supplemental answer of King on the claim of title acquired from Lulu Carpenter during the pendency of the proceedings.
At the trial the court made elaborate findings of fact, from which those stated have been taken, and also that the parties to the post-nuptial agreement were assisted by counsel in making the same, that it was fairly and intelligently entered into, and that it was fair, reasonable and just to both parties. As a conclusion of law it was found that the contract was valid and that it was wholly executed prior to the death of Martha Bartel; that John J. Bartel had no title, right or interest in the real estate in question, and that Lulu Carpenter took nothing by her quitclaim deed from him, and consequently conveyed nothing to R. L. King. The title of the heirs was quieted as against the claims of King and Carpenter and judgment given against them. R. L. King brings this proceeding to obtain a reversal of the judgment.
Judgment affirmed.
W. H. Carpenter, and T. O. Kelly, for plaintiff in error.
Madden Bros., H. A. McLean, and C. M. Clark, for defendants in error.
JOHNSTON, J. DOSTER, C. J., not sitting, having been of counsel in the case.
The validity of the post-nuptial agreement by which a division of the property was effected is the controlling question in the case. Under our statute the wife is capable of contracting with her husband, and it has been held that the conveyance of property directly from one to the other will be upheld so far as it is equitable to do so. (Munger v. Baldridge, 41 Kan. 236, 21 P. 159.) In Kansas there are not the obstacles to a contract between husband and wife that exist in some of the states, nor is there the same necessity for the intervention of a trustee in conveying or transferring property from one to another. Marriage settlements controlling the division and affecting the descent of property, which are intelligently made and are just and equitable in their provisions, are sanctioned by the courts. (Hafer v. Hafer, 33 Kan. 449, 6 P. 537.) The settlement in the present case appears to have been intelligently made, as the parties had the advice and assistance of able lawyers; and that its provisions are fair, reasonable and just to both of the parties is not open to dispute.
The contention here is that the contract of the spouses was a usurpation of the power conferred on the courts alone, and an attempt to abrogate the marriage contract, and for that reason must be held a nullity. It is true that the contract was made in contemplation and in the execution of an immediate separation, and also that there was an unexpressed purpose that a divorce should at once be obtained which would effect an absolute dissolution of the marriage relation. The conjugal obligations cannot be canceled nor the marriage relation annulled by the mere agreements of the parties. The marriage relation is not on the footing of an ordinary contract, as the public has an interest in the status of the parties and in the fulfilment of the obligations and duties which the husband and wife mutually owe to each other. Public policy, therefore, forbids an agreement which encourages or facilitates a dissolution of the marriage relation, or which provides for a separation which is to take place some time in the future. So, in Neddo v. Neddo, 56 Kan. 507, 44 P. 1, certain provisions of the contract which seemed to invite disagreement and dissolution were condemned, and it was said that "no marriage settlement ought to be upheld which invites and encourages a violation of the marriage vow." The state guards the sanctity of marriage, and demands the fulfilment of its obligations, and therefore the law will not allow parties to release themselves from marital relations or annul the marriage contract at pleasure. Much controversy has arisen as to the validity of separation agreements, and although judges have frequently and in strong language deprecated the cause and effect of them, and condemned agreements by which they were accomplished, it may be regarded as settled law in England and this country that a valid agreement may be made for an immediate separation between husband and wife whose relations are such as to make it inevitable, or where the conduct of one is such as to render a separation necessary for the health and happiness of the other.
In Walker v. Walker, 76 U.S. 743, 9 Wall. 743, 19 L.Ed. 814, Justice Davis said:
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