Simmer v. Simmer

• Citation: 261 N.W. 481,195 Minn. 1
• Decision Date: 21 June 1935
• Docket Number: 30037.
• Parties: SIMMER v. SIMMER.
• Court: Minnesota Supreme Court

261 N.W. 481

195 Minn. 1

SIMMER v. SIMMER.

No. 30037.

Supreme Court of Minnesota.

June 21, 1935

Appeal from District Court, Ramsey County; Hugo O. Hanft, Judge.

Action by Mary M. Simmer against Jacob Simmer, Jr. From an order denying her motion for a new trial, plaintiff appeals.

Reversed.

Syllabus by the Court .

1. A separation agreement between husband and wife in terms obligated watch to join with the other in the execution of future conveyances or incumbrances of real property belonging to either. Held illegal because of the statute Mason's Minn. St. 1927, § 8621, declaring that ‘ no contract between husband and wife relative to the real estate of either, or any interest therein * * * shall be valid.'

2. The legal promises are not severable from the illegal because of the rule that, if any part of a bilateral bargain is illegal none of its legal promises can be enforced unless based upon a corresponding legal promise related or apportioned to it as the consideration therefor.

Keller & Chapin, of St. Paul, for appellant.

Chas E. Bowen, of St. Paul, for respondent.

STONE Justice.

Action by a wife against her husband for support, tried without a jury, resulting in a decision for defendant. Plaintiff appeals from the order denying her motion for a new trial.

The action was commenced in 1933. The defense was a separation agreement entered into by plaintiff and defendant March 24, 1925. It provided for dismissal of pending divorce proceedings; division of certain money and personal property; payment by husband of support money to wife; education and custody of minor children; and payment of attorney's fees. The agreement was to ‘ continue to be in full force and effect for a period of three years' from its making.

1. Assuming without deciding that the provisions for mutual release from unexcepted claims (soon to be quoted) arising out of the marriage relation are not nullified now by the three-year limitation, the separation agreement would probably be valid, and consequently a defense to this action, if it contained no provisions other than those above summarized.9 R.C.L. 524; Hill v. Hill, 74 N.H. 288, 67 A. 406,12 L.R.A.(N.S.) 848, 124 Am.St.Rep. 966 (annotated); note on ‘ Validity of contract between husband and wife to compromise pending or contemplated divorce suit,’ at 60 L.R.A. 406; Roll v. Roll, 51 Minn. 353, 53 N.W. 716; Vanderburgh v. Vanderburgh, 148 Minn. 120, 180 N.W. 999; Vanderburgh v. Vanderburgh, 152 Minn. 189, 188 N.W. 276; Restatement of Contracts, § 584.

But here another question is presented because the agreement provided that:

‘ In consideration of the premises and of the faithful fulfilment by the said Jacob Simmer of all the conditions of this agreement by him to be performed, she (plaintiff) releases him forever, and in every respect from any and all claims of every name, nature and description or demands upon her part against him, arising out of their marriage relation, excepting only such as are preserved by this agreement. And she further agrees that she will at any time, upon demand, join with the party of the second part and execute any conveyance or incumbrance which he may desire to make of or concerning any of his real property that he may acquire during the pendency of this agreement .'

‘ And the said Jacob Simmer, upon his part, in consideration of the premises, agrees to and does hereby surrender any and all claims and demands which he might have or hold against the separate property or any property that the said Mary M. Simmer may hereafter acquire during the existence of this agreement by reason of the marriage relation, and does hereby release said Mary M. Simmer, and her estate from any and all such claims and he further agrees that he will upon demand join with her in any conveyance or incumbrance which she may desire to make of or upon any of her separate real property or any property that she may acquire during the pendency of this agreement .’ (Italics supplied.)

It has long been the law of this state that ‘ no contract between husband and wife relative to the real estate of either, or any interest therein, nor any power of attorney or other authority from the one to the other to convey real estate, or any interest therein, shall be valid.’ Mason's Minn. St. 1927, § 8621. The above-quoted provisions clearly attempt what is expressly prohibited by that statute and are, therefore, void. Dunnell, Minn. Dig. (2d Ed.) § 4282. The statute is applicable where husband and wife are living apart. Phillips v. Blaker, 68 Minn. 152, 70 N.W. 1082. It renders void a direct conveyance from one spouse to the other. Luse v. Reed, 63 Minn. 5, 65 N.W. 91; Phillips v. Blaker, supra; Betcher v. Rinehart, 106 Minn. 380, 118 N.W. 1026; Snortum v. Snortum, 155 Minn. 230, 193 N.W. 304. A wife cannot release to her husband her statutory interest in his realty. In re Rausch, 35 Minn. 291, 28 N.W. 920; Erickson v. Robertson, 116 Minn. 90, 133 N.W. 164,37 L.R.A.(N.S.) 1133, Ann.Cas. 1913A, 493. An executory contract to convey or release is just as plainly within the condemnation of the statute. The separation agreement involved in Hertz v. Hertz, 136 Minn. 188, 161 N.W. 402, did include an attempted release by the wife of her statutory rights in the husband's real estate should she survive him, but no question as to the effect of that release was raised and so the decision does not touch the point. Part performance does not take such a case out of the statute. Laird v. Vila, 93 Minn. 45, 100 N.W. 656,106 Am.St.Rep. 420.

We are dealing with an explicit statute couched in plain language and with a plain purpose. It calls for no construction. None is permissible that will save this contract. Our plain duty is to enforce the statute as it stands and nullify all contracts in violation of it. If the results are undesirable, and the law should be so changed as to prevent them, the problem is for the Legislature.

The argument for defendant, that the only purpose of Mason's Minn. St. 1927, § 8621, is to prevent one spouse from conveying real estate or any interest therein directly to the other, is erroneous. The statute invalidates a contract of any kind between husband and wife in respect to the real estate of either. That intention could not be made plainer. Husband and wife are forbidden to enter into any executory agreement with each other to join in future conveyances. But the law does not prohibit spouses joining with each other, as vendors, in an executory contract with a third party, as vendee, to convey the property of either, or the joint property of both, any more than it forbids their joint conveyance of such property. The intention that neither shall give the other, by agreement between the two, any interest in or control over real estate could not be made plainer than by the express prohibition that neither shall give to the other ‘ any power of...