Sifton v. Sifton

• Decision Date: 26 October 1895
• Court: North Dakota Supreme Court

65 N.W. 670

5 N.D. 187

LURY A. L. SIFTON v. JOHN W. SIFTON

Supreme Court of North Dakota

October 26, 1895

Appeal from District Court, Barnes County; Rose, J.

Action by Lury Ann Louise Sifton against John W. Sifton. Judgment for plaintiff, and defendant appeals.

Reversed.

Reversed.

Andrus & Remmen, for appellant.

Young & Burke, for respondent.

OPINION

WALLIN, C. J.

In this action the complaint is as follows: "(1) That on the 30th day of June, 1892, the said defendant made, executed and delivered to said plaintiff a certain instrument in writing, in words and figures following, to-wit: 'In consideration of Lury Ann Louise Sifton waiving her right to a decree for alimony and counsel fees in the action for divorce now pending in the District Court of the Fifth Judicial District, State of North Dakota, in and for the County of Barnes, wherein she is plaintiff, and James W Sifton, the brother of the undersigned, is defendant, and in lieu of such alimony and allowances, I, the undersigned hereby promise and agree to pay to said plaintiff $ 200.00 cash at the delivery of these presents; $ 200.00 July 1st, 1893; $ 200.00 July 1st, 1894; and $ 200.00 July 1st, 1895. In case the undersigned shall fail to make payments, or any of them, as hereinbefore provided, then said plaintiff shall be at liberty to apply to said court for a decree for alimony. After July 1st, 1896, if the parties to said action shall fail to agree upon the amount of alimony for the support of their child, then either of said parents shall be at liberty to apply to said court for the adjustment of such alimony. The payments hereinbefore first provided for shall be in lieu of all alimony, attorney's fees, and costs, and shall bear no interest, if paid at the dates specified; provided, however, that the household furniture and effects now in possession of said plaintiff may be assigned to her by the court, as alimony, in addition to the payments hereinbefore provided for. Dated this 30th day of June, 1892. John W. Sifton. Lury Ann Louise Sifton.' (2) That by the terms of the said written instrument the said defendant became indebted to the plaintiff in the sum of $ 200 on the 1st day of July, 1894. (3) That no part of the sum falling due July 1, 1894, has ever been paid, though payment has often been demanded. (4) That the said plaintiff has fully performed all the conditions of said instrument on her part. Wherefore, plaintiff demands judgment against the said defendant for the sum of $ 200, with interest thereon since the first day of July, 1894, together with costs and disbursements of this action." To which complaint defendant made answer as follows: "Defendant denies generally and specifically each and every allegation contained in plaintiff's complaint, except as hereinafter specially admitted or qualified. Defendant admits the execution of the contract described in the plaintiff's complaint, but avers that the same was executed by him under the following circumstances, and for the following reasons: That the plaintiff in this action and the said James W. Sifton, mentioned in the complaint, at the time the contract mentioned in the complaint was executed, were husband and wife. That the said James W. Sifton was at that time anxious to get a divorce from this plaintiff, and this plaintiff was anxious to secure a divorce from the said James W. Sifton. That the said contract was entered into for the purpose of facilitating a divorce for the said James W. Sifton from his wife, this plaintiff, and for no other consideration, so far as this defendant is concerned. It was agreed at the time this contract was executed that neither the said James W. Sifton nor his agent nor attorney should put in any defense, by the way of offering any evidence on the part of the defendant in the divorce proceedings then pending between the parties aforesaid, so the plaintiff could proceed without opposition to get her divorce, not only for herself,...