Vock v. Vock

• Citation: 6 N.E.2d 843,365 Ill. 432
• Decision Date: 18 February 1937
• Docket Number: No. 23775.,23775.
• Parties: VOCK v. VOCK.
• Court: Illinois Supreme Court

365 Ill. 432

6 N.E.2d 843

VOCK

v.VOCK.

No. 23775.

Supreme Court of Illinois.

Feb. 18, 1937.

Suit by Sadie M. Vock against Nicholas Vock, wherein defendant filed a counterclaim. From the decree, complainant appeals.

Reversed and remanded, with directions.Appeal from Circuit Court, Whiteside County; Nels A. Larson, judge.

Sim T. Mee and I. L. Weaver, both of Sterling, for appellant.

Sheldon & Brown and Ward, Ward & Scheineman, all of Sterling, for appellee.

JONES, Justice.

This is an appeal from a decree of the circuit court of Whiteside county. Sadie M. Vock and Nicholas Vock were married in 1920 and separated in 1927. At the time of their separation they entered into a postnuptial contract under the terms of which the husband paid the wife $5,000 in cash for a release of all her rights in his property and from all obligation of future support. He too released all his interests in her property and the parties mutually agreed to live separate and apart. Shortly thereafter, out of the money so received, she purchased a home in which she has continued to reside. It cost about $4,500.

In 1935 Sadie M. Vock, appellant here, filed the complaint in this proceeding in which she alleged she had entered into said contract, but that it was void as against public policy, and that the $5,000 she received had been consumed in her support. She prayed that the contract be declared null and void and that she be given a decree for separate maintenance. The answer and counterclaim of the husband conceded the illegality of the postnuptial contract, but asserted that plaintiff should not be afforded any relief without returning to him the money he had paid her or, in the alternative, that she be compelled to convey to him the property she purchased. The circuit court found that the wife was not entitled to separate maintenance and she was ordered to convey the premises to her husband.

The contract was against public policy and was illegal. Van Koten v. Van Koten, 323 Ill. 323, 154 N.E. 146, 50 A.L.R. 347;Lyons v. Schanbacher, 316 Ill. 569, 147 N.E. 440. But this fact, of itself, constitutes no basis for the allowance of separate maintenance. The husband is liable for the necessary support of his wife throughout the continuance of the marital relationship. However, an allowance of separate maintenance, under the statute, can be made to her only in a case where the separation is without her fault. Smith-Hurd Stat.1935, c. 68, § 22; Ill.Rev.Stat.1935, c. 68, par. 22. If she voluntarily consents to the separation, she is not without fault within the meaning of the statute. Bielby v. Bielby, 333 Ill. 478, 165 N.E. 231;Hoffman v. Hoffman, 316 Ill. 204, 147 N.E. 110;Johnson v. Johnson, 125 Ill. 510, 16 N.E. 891. Mrs. Vock did not bring herself within the terms of the statute and the decree denying her separate maintenance was therefore not erroneous.

The order requiring appellant to convey her home to her husband was erroneous. The validity of contracts between a husband and wife is determined in the same manner as other contracts. Actions to set aside such agreements rest on and are governed by the same principles as similar actions affecting other contracts. 13 R.C.L.Contracts, § 392; 30 Corpus Juris, 1069, Husband and Wife, § 855. The $5,000 paid plaintiff by defendant was not only for a release of her rights in his property, but for the release of his obligation to provide for her support. The invalid provision is inseparable from any other provision of the contract, and was so material a consideration that it renders the entire contract invalid, under the long-established rule that, if any part of the entire consideration for a contract is illegal, the whole contract is void. That which is bad destroys that which is good and both perish together. Lyons v. Schanbacher, supra; First National Bank v. Miller, 235 Ill. 135, 85 N.E. 312;Douthart v. Congdon, 197 Ill. 349, 64 N.E. 348,90 Am.St.Rep. 167.

It is a rule of equity that, where a contract is illegal or against public policy, a court of equity will not, at the suit of one of the parties who participates in the illegal or immoral intent, either compel the execution of the agreement or set it aside after it has been executed, because to give relief in such a case would injure and counteract public morals. The application of this rule is not in the interest of any party to the illegal or immoral transaction but is in the interest of the public. Mitchell v. Clem, 295 Ill. 150, 128 N.E. 815;St. Louis, Jacksonville & Chicago Railroad Co. v. Mathers, 71 Ill. 592, ...