Speck v. Dausman

• Decision Date: 29 April 1879
• Citation: 7 Mo.App. 165
• Parties: CHARLES SPECK, TRUSTEE OF NANCY DAUSMAN ET AL., Appellant, v. HENRY DAUSMAN, Respondent.
• Court: Missouri Court of Appeals

7 Mo.App. 165

CHARLES SPECK, TRUSTEE OF NANCY DAUSMAN ET AL., Appellant,

v.HENRY DAUSMAN, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 29, 1879.

1. A contract between husband and wife, so framed as to have effect only on condition that a divorce is granted without alimony, will not be enforced.

2. That the contract is made through the intervention of a trustee, and that the papers are in escrow, does not change the aspect of the transaction; and it is immaterial that the divorce is obtained for good cause, and is defended in good faith.

APPEAL from St. Louis Circuit Court.

Affirmed.

W. B. THOMPSON, for appellant: The contract was not executed until a divorce was obtained between the parties, and when an actual separation had taken place; and when executed, the provisions thereof referred to the alimony and support of the wife, and were in all respects valid.--2 Story's Eq., sects. 1427, 1428; Simpson v. Simpson, 4 Dana, 141; Wilson v. Wilson, 14 Sim. (in 37 Eng. Ch. Rep.) 405; Bittle v. Wilson, 14 Ohio, 257; Hutton v. Hutton, 3 Barb. 100; Chapman v. Gray, 8 Ga. 341; Wells v. Stout, 9 Cal. 479; Carson v. Murray, 3 Paige, 483, 501; Hill on Tr. 426; Nicholas v. Palmer, 5 Day, 47; Reed v. Beazley, 1 Blackf. 97; Daggett v. Daggett, 5 Paige, 509; Wallingsford v. Wallingsford, 6 Har. & J. 485; Threewits v. Threewits, 4 Desau. 560; Hooper v. Hooper, 1 Sw. & Tr. 602; Blake v. Blake, 7 Iowa, 46. And specific performance of such a contract may be decreed, though there be no covenant by the trustees to indemnify the husband against the wife's debts.-- Frampton v. Frampton, 4 Beav. 287; Clough v. Lambert, 10 Sim. 174; Jodrell v. Jodrell, 9 Beav. 45; Wilson v. Wilson, 14 Sim. 405.

DAVIS & SMITH, for respondent: The agreement is illegal, as tending to produce collusion.--Bishop's Mar. & Div., sect. 595; Daggett v. Daggett, 5 Paige, 509; Carson v. Murray, 3 Paige, 501.

BAKEWELL, J., delivered the opinion of the court.

Pending a proceeding for divorce by Nancy Dausman against respondent, the parties to the suit entered into a written agreement, through the intervention of a trustee for the wife, whereby it was agreed that the husband would never claim any of the personal property then in the possession of the wife, or which she might afterwards acquire; and that he would convey to her certain parcels of real estate in trust for her during her natural life, out of the rents of which she was to support her daughter by the marriage. The husband was to pay off an encumbrance of $15,000 on the real estate named, within three years. In case of her marrying again, the rents to be divided equally between Mrs. Dausman and her daughter. The husband further agreed to convey the remainder, subject to the life-estate of Mrs. Dausman, to the two children of the marriage, and to make a certain provision named for the education of his son by the marriage.

It was further agreed that the husband should be freed from all claim of the wife for alimony or maintenance; and that the contract and deeds, and certain insurance policies, assigned in blank, should be deposited with a third person, to be held till the termination of the divorce suit. If the divorce was obtained without alimony, then the deeds, policies, and one copy of the contract to be delivered to Mrs. Dausman's trustee. If the decree was denied, or granted with alimony, then the contract to be void.

The allegation is that the divorce was obtained without alimony, and the papers delivered according to the terms of the contract, and that respondent has not performed his covenant to pay off the deed of trust; and damages are asked for this breach of contract.

The defence set up is that the contract was collusive, illegal, and void. On the trial, plaintiff offered to prove the allegations of the petition; that the divorce was obtained for good cause, and that it was defended in good faith, and every prayer of the bill granted except that for alimony.

The court excluded all the testimony, on the ground that the contract could not be enforced. Plaintiff took a nonsuit with leave, and the cause is brought here on appeal from the action of the court in refusing to set this nonsuit aside.

Appellant refers us to Wilson v. Wilson, 1 H. L. Cas. 538, and other English cases, in which the Court of Chancery has exercised jurisdiction in giving effect to articles of separation between husband and wife, so far as they regard an arrangement of property agreed upon. Separation deeds have been recognized in England, though eminent equity judges have expressed their surprise how they came to be recognized by any court....