Martin v. Martin
| Decision Date | 06 December 1884 |
| Citation | 21 N.W. 595,65 Iowa 255 |
| Parties | MARTIN v. MARTIN |
| Court | Iowa Supreme Court |
Appeal from Fremont Circuit Court.
ACTION FOR DIVORCE. The judgment of the circuit court was for plaintiff, granting her a divorce and the custody of her minor child; also granting her an allowance as alimony. Plaintiff appeals from the portion of the judgment awarding her alimony.
AFFIRMED.
Holmes & French, for appellant.
J. W Dalby, for appellee.
Defendant alleged, in one division of his answer that before the commencement of the suit he and plaintiff, by mutual consent and agreement, separated, and that they then entered into a written contract by which plaintiff agreed, in consideration of the conveyance by him to her of certain real estate, and the delivery to her of certain personal property, and the payment to her of certain money, that in her action of divorce she would make no claim for alimony, either temporary or permanent, and that she would release him from all liability for the support of their minor child; and he alleges that he has fully performed all of his undertakings in said contract. This matter is pleaded in bar of plaintiff's right to recover alimony, or any allowance for the support of said minor child. Plaintiff demurred to this division of the answer, on the ground that the alleged contract was illegal and void. The circuit court overruled the demurrer, and this ruling is assigned as error. That a contract of this character between husband and wife during the continuance of the marriage relation, would at common law be void, cannot be doubted. But it was held in Blake v. Blake, 7 Iowa 46, that the capacity of the parties to contract with each other was so enlarged by the statutes of this state, as that a contract of this character if it was supported by a just and adequate consideration, and was untainted by fraud, or circumvention, or improper influence, would be enforced; and this holding was adhered to in the subsequent cases. Since these holdings, however, the legislature enacted section 2203 of the Code. This section provides that, "when property is owned by either the husband or wife, the other has no interest therein which can be the subject of contract between them, * * * *" and it is contended by plaintiff that under this section contracts like the one in question, between husband and wife, are prohibited. If the contract is valid, its effect, when enforced by the judgment of the court, is to deprive plaintiff...
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