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land and in the United States-and particularly in Pennsylvania— that an agreement of separation between husband and wife, made after separation has taken place, whereby the husband provides for the wife's separate maintenance during the continuance of such separation is lawful, and is not in contravention of public policy. Wilson v. Wilson, 1 H. L. Cas. 538; Hunt v. Hunt, 5 Law T. Rep. 778; Daniels v. Benedict, 97 Fed. 367, 372, 38 C. C. A. 592 (C. C. A. 8th); 6 R. C. L. 771, and cases; Hutton v. Hutton's Adm'r, 3 Pa. 100; Speidel's Appeal, 107 Pa. 18; Frank's Estate, 195 Pa. 26, 33, 45 Atl. 489; Singer's Estate, 233 Pa. 55, 81 Atl. 898; Murh's Estate, 59 Pa. Super. Ct. 398. But the contract here under discussion, while entered into at a time when there was a separation between husband and wife presently existing, was made not with reference to that separation as it then existed, but with reference to a contemplated future separation yet to arise out of and to follow an anticipated future event, which was the entry of a decree for divorce. This was another separation, and a separation of another kind. This fact, we think, carries the case away from the principles of law applicable to a contract for a wife's maintenance during a present separation, and takes it back to the very principles of law applicable to a contract for future separation which the plaintiff conceded but endeavored to avoid at the threshold of the argument. Thus, there is raised a question with two aspects, first whether the contract in suit was based on an immoral consideration, and if not, whether its true purpose or its tendency was to induce the future separation to which it relates by stimulating the wife in the prosecution of her suit for divorce in a manner and measure opposed to sound principles and public policy.

[1] Does the contract contain a valid consideration? The contract is unilateral. It contains two promises by the husband and none by the wife. Admittedly, no express consideration moved from the wife to the husband. The only consideration for the husband's promise named in the contract is the husband's relief from annoyance in having "his financial condition, and the value of his business, and his business interest, * * * made the subject of judicial investigation" and disclosed to the public by the court in determining alimony, which both parties, we must assume, mistakenly thought would be imposed by the decree of divorce. As there rested on the husband no legal obligation for his wife's support after divorce of the character contemplated in the agreement, and, as, accordingly, no decree for alimony could validly be entered against him, Moore v. Moore, 64 Pa. Super. Ct. 192, it follows that no inquiry by the court into the husband's affairs to determine the amount of alimony could validly be made. A promise made where there is no legal obligation, and made, whether through ignorance of rights or misconception of the law, to avoid something that cannot happen, lacks valid consideration, and is not binding. Logan v. Mathews, 6 Pa. 417; Offutt v. Parrott, 1 Cranch, C. C. 154, 18 Fed. Cas. 606, No. 10,453; Maull v. Vaughn, 45 Ala. 134; Grimes v. Grimes, 89 S. W. 548, 28 Ky. Law Rep. 549. It would appear, therefore, that the contract is void for want of consideration. But opposed to this view, the plaintiff cites and con

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fidently relies upon the case of Blaker v. Cooper, 7 Serg. & R. (Pa.) 500, where the court sustained a contract made between husband and wife while separated, providing for the wife's support for her natural life. Subsequently the parties were divorced-at whose instance it does not appear-and the wife remarried. The husband stopped payments and the wife sued on the bond accompanying the contract. The report of the case shows very clearly that the husband, who was a man of landed property, made his promise of support on a valid consideration-the wife's release of dower-and not on a misconception of the law as to his obligation to support his wife after divorce. The point was made that the contract provided for alimony, and, that, as under the Pennsylvania law the husband was not liable for alimony after divorce a vinculo matrimonii, the contract expired with the granting of divorce. The court decided otherwise. The case cited does not rule this case, because there a valid consideration for the husband's promise was found, while here no such valid consideration appears, and also in that case the promise, not being made in contemplation of divorce and for the wife's support during the separation that would follow, was not contra bonos mores, while here the promise, if not literally given in consideration of divorce, its performance was conditioned on divorce, and raises the question of public policy.

[2] If nothing more were in the case than the question of the validity of the consideration just discussed, we would hold that the judgment of the court below should be affirmed. But we prefer, rather, to decide the case on another ground, which extends beyond the immediate interests of the parties and relates to considerations of good morals and public policy.

The question whether the contract is against public policy must be determined by its purpose and tendency. 6 R. C. L. 707. Admitting this, the plaintiff maintains, that the purpose and tendency of the contract are questions for the jury, and, that, accordingly, the trial judge erred in deciding them himself. But, where the facts are conceded, or are not in dispute, as on demurrer or on affidavit of defense under the Pennsylvania practice, or where the question does not depend upon the circumstances under which the contract was entered into, the question whether a particular contract contravenes public policy is to be determined by the court, not by the jury. 6 R. C. L. 710. The contract being before the court on pleadings that show all the facts, the question whether a contract which contemplates a future separation has a tendency to induce such separation in a manner that contravenes public policy is one of interpretation by the court. 6 R. C. L. 771, and cases.

It cannot be denied that the contract in this case contemplates separation in the future, that is, a separation that will follow future divorce. It looks to, not merely a possible, but an intended separation. The husband's promise is enforceable, if at all, only after a divorce a vinculo matrimonii has been granted; therefore, his promise is conditioned on that event. Has the promise a tendency to induce that event? The promise was not made to cover merely a real or fancied obligation. A promise to discharge such an obligation,

even if otherwise valid would be void if its tendency was to induce an unlawful thing. But the promise was for something more than for support of the divorced wife during the period of the husband's life-an obligation which the laws of some states would impose upon him. He undertook to support her for her life, and to do this, he bound "his heirs, executors, and administrators" to continue payments for her support after his death. By this promise, the wife was shown, that if she succeeded in getting a divorce, she would receive more than the law would award her, even if the law were as she thought it. This was a substantial inducement to her to prosecute her divorce proceeding to the decree on which alone she could reap the promised reward. Manifestly, the tendency of the husband's promise as it affected the wife was to encourage her to prosecute the suit to a successful termination, or, at the very least, to deter her from abandoning it. Such an undertaking savors of collusion, a thing the divorce laws of Pennsylvania very vigorously denounce. The husband had some reason for making the promise other than a sense of legal obligation to support his wife after divorce. He doubtless expected some benefit in return for the detriment he would suffer and his estate would sustain by payments to be made by him and his executor through an unknown period of years. It must be believed that there is hidden in the contract some consideration, other than the one we have already disposed of, which inspired him voluntarily to enter into an obligation of such substantial character. The promise of the husband to do what the law did not require of him and to do it in a measure even beyond his own misconception of the law's requirements, suggests the real consideration that moved him to his promise. If, because of the silence of the contract and the absence of evidence aliunde, we cannot hold that the consideration of the husband's promise was the obtaining of the divorce which his wife was seeking, we find that the promise shows a willingness on his part, if nothing more, to promote and pay for the event which the wife alone could bring about. A contract to do such a thing tends inevitably to encourage the beneficiary to perform the condition on which alone she can receive its benefits.

The marital relation is regarded by the law as the basis of the social organization. The preservation of that relation is deemed essential to public welfare. Agreements between parties that are conditioned on divorce, Barngrover v. Pettigrew, 128 Iowa, 533, 104 N. W. 904, 2 L. R. A. (N. S.) 260, or that tend to destroy that relation by encouraging or facilitating the procuring of divorce, are against good morals and will not be enforced. The maxim, "Ex turpi contractu non oritur actio," founded as it is on sound morals, has been long recognized by the courts in the administration of justice. The contract in suit, as we interpret it, is very different from contracts sustained by courts in some states where the husband's obligation to support his wife continues after divorce and is provided for by alimony, and where such agreements are regarded by the courts as a satisfactory short cut to aid them in framing decrees. Hammerstein v. Equitable Trust Co., 156 App. Div. 644, 141 N. Y. Supp. 1065, 1070; Werner v. Wer

ner, 153 App. Div. 719, 138 N. Y. Supp. 633; Doeme v. Doeme, 96 App. Div. 284, 89 N. Y. Supp. 215, 218; Nelson v. Vassenden, 115 Minn. 1, 4, 131 N. W. 794, 35 L. R. A. (N. S.) 1167; Ham v. Twombly, 181 Mass. 170, 173, 174, 63 N. E. 336. Even in cases in these states, contracts for support in the nature of agreed alimony are not、 sustained if they disclose a tendency to encourage divorce. Werner v. Werner, 153 App. Div. 719, 138 N. Y. Supp. 633; Maisch v. Maisch, 87 Conn. 377, 383, 87 Atl. 729; Gibbons v. Gibbons (Ky.) 54 S. W. 710, 711.

We regard the contract in suit void as tending to aid and facilitate the obtaining of a divorce by encouraging the wife vigorously to prosecute her action, and that, being void, because opposed to public policy, the contract cannot be rendered valid either by the presence of an otherwise lawful consideration or by the mere ceremony of attaching a seal to it. Gaslight & Coke Co. v. Turner, 5 B. N. C. 675; Standard Lumber Co. v. Butler Ice Co. (C. C. A. 3d) 146 Fed. 359, 76 C. C. A. 639, 7 L. R. A. (N. S.) 467.

The judgment below is affirmed.

WOLFE et al. v. BARATARIA LAND CO.

(Circuit Court of Appeals, Eighth Circuit. January 8, 1919.)

No. 4966.

COVENANTS 121(3)—JUDGMENT AGAINST COVENANTEE-EFFECT.

To hold a warrantor in a deed bound by the result of a suit involving the matter upon which his obligation rests, it is not necessary that he be a formal party to the record, but it is sufficient if he has information of the suit and an invitation and opportunity to participate in it. Wade, District Judge, dissenting in part.

In Error to the District Court of the United States for the Northern District of Iowa; Henry T. Reed, Judge.

Action at law by the Barataria Land Company against John D. Wolfe and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

F. F. Dawley, of Cedar Rapids, Iowa (Dawley & Jordan, of Cedar Rapids, Iowa, and C. W. Kepler & Son, of Mt. Vernon, Iowa, on the brief), for plaintiffs in error.

J. H. Trewin, of Cedar Rapids, Iowa (John M. Redmond and John D. Stewart, both of Cedar Rapids, Iowa, on the brief), for defendant in error.

Before HOOK and STONE, Circuit Judges, and WADE, District Judge.

HOOK, Circuit Judge. The Barataria Land Company sued the Wolfes in the United States District Court for the Northern District of Iowa to recover a part of the purchase price paid them for a tract of land in Louisiana, which they sold and conveyed to it with cove

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

nants of seizin and warranty. The price paid was an agreed sum per acre, and the action was brought because of a shortage in the area, afterwards ascertained.

To show the extent of the shortage the plaintiff introduced in evidence the record of a decree of a court of Louisiana in a suit between it and an adjoining landowner to settle a controversy over their boundary line. The line established by the decree lessened the area conveyed and warranted to the plaintiff. Upon proof that the defendants Wolfe were informed of the pendency of the Louisiana suit, and were invited to aid plaintiff in the trial of it, the court instructed the jury that the decree was conclusive of the true boundary line, leaving them only to compute their award upon the shortage disclosed and the price paid per acre. Accordingly there was a verdict and judgment for the plaintiff, and defendants prosecuted this writ of error. The question is of the correctness of the court's instruction.

A statute of Louisiana provides for suits to settle controversies over boundary lines. Such a suit does not depend upon adverse possession by a defendant as in actions in ejectment, but upon the existence of a controversy over the true boundary between adjoining owners, and it is not material which of the disputants commences it. The remedy provided by the statute makes for good order, and in effect, if not in form, may in a sense result in the judicial establishment of title. The plaintiff here was also the plaintiff in Louisiana, but there is no sound reason in that circumstance why those beholden to it may not be concluded by the decree as much as if it had been a defendant in ejectment and had suffered eviction. The controversy was a justiciable one, affecting plaintiff's right to land embraced in the description in defendants' deed. It is not denied that there was a real controversy between the plaintiff and the adjoining owner over the boundary line, and no fraud or collusion appears. The judicial determination of it must necessarily have been in Louisiana.

To hold a warrantor, indemnitor, or person in a similar relation, bound by the result of a suit involving the matter upon which his obligation to another rests, it is not necessary that he be a formal party to the record. The strict principles of res adjudicata do not apply. His privity or relation to the record party precedes the judgment, and it is sufficient if he has information of the suit and an invitation and sonable opportunity to aid or participate in the conduct of it. Chicago v. Robbins, 2 Black, 418, 17 L. Ed. 298; Robbins v. Chicago, 4 Wall. 657, 18 L. Ed. 427. In that case the city sued Robbins to recover the amount of a judgment it was compelled to pay to one Woodbury for injuries caused by his falling into an excavation in a public street which Robbins made and negligently left unguarded. Robbins had been informed of the Woodbury suit against the city and of the approaching trial, and was requested by the city to aid it in procuring testimony. He was not formally notified to defend, nor that he would be held responsible for the result. The Supreme Court held that such a notice was not necessary. That case was founded on a tort, but the principle applies as strongly where the duty to indemnify or hold harmless arises from contract. There is a diversity of views in the state courts as to the

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