Schley v. . Andrews

McLaughlin, J. This action was brought to enjoin the collection of so much of a judgment as remains unpaid and for other relief. The parties were formerly husband and wife. Unhappy differences having arisen between them, the plaintiff, in order to induce the defendant to procure a divorce, and if she did so to provide for her support, entered into an agreement by which he stipulated if she would procure a divorce he would pay her $200 per month during her life; that he would have his life insured in the sum of $20,000, payable to her upon his death in case she had not in the meantime again married; and as collateral security for the payment of the $200 per month he would confess judgment for $35,000. Defendant procured a divorce and thereafter the agreement, confession of judgment and policy of insurance were delivered to her. After making several payments he refused further to carry out the agreement, she having in the meantime remarried. Thereupon she entered judgment upon the confession for $35,017.87, which according to the findings she threatens and is about to take proceedings to collect. Such threat she has already put into effect, according to a statement in respondent’s *113 brief, by issuing an execution upon the judgment, and the same having been returned wholly unsatisfied, she has obtained another execution under section 1391 of the Code of Civil Procedure, by which ten per cent of the income of a trust fund created for the benefit of the appellant is now actually being taken for the purpose of satisfying the judgment. At the trial the complaint was dismissed on the merits, and from a judgment entered to that effect the plaintiff appealed to the Appellate Division, where the same was affirmed, two of the justices and he now comes to this court. The agreement was entered into by the plaintiff for the sole purpose of inducing the defendant to procure a divorce. This the defendant at the time of the execution thoroughly understood, since the agreement provided that if she did not do so, it and the confession of judgment were to be of no effect. The confession, the court found, was intended as collateral security for the payment of the amounts stipulated in the agreement to be made. The agreement and confession were illegal. (Domestic Relations Law [Cons. Laws, ch. 14], sec. 51.) They constituted a fraud upon the law. They were against public policy, and could not be enforced by legal process. (Wolkovisky v. Rapaport, 216 Mass. 48.) The judgment entered upon the confession occupies no better position. It has for its support an illegal consideration, which the court does not recognize and which it never hesitates to condemn. To this extent I understand all the members of the court are in accord. Some of them, however, are of the opinion that the action being in equity, and each of the parties being equally at fault, they should be left where the court finds them. This is the general rule, but it applies only to contracts which have been fully performed. It does not apply where the contract remains in whole or in part executory. The agreement, confession and judgment must be considered together. They were each and all *114 intended to accomplish a single purpose, namely, the payment to the respondent of $200 per month during her life, provided she would obtain a divorce. The invalidity of one involves the invalidity of the others. In so far, however, as performance has been had the general rule should be applied, and the parties left where the court finds them, but to the extent that the judgment has not been collected, I think the court, out of its respect for the enforcement of the law, as well as on the ground of a wise and wholesome public policy, should interfere and prevent the arrangement being further consummated by the collection of the judgment. This view is supported by cases in other states. (Fields v. Brown, 188 Ill. 111; Given’s Appeal, 121 Penn. St. 260; Heath v. Cobb, 17 N. C. [2 Dev. Eq.] 187.) The plaintiff refuses to make further payments. The judgment, therefore, can only be collected by an execution in the hands of the sheriff. An execution is a process of the court (Code Civil Procedure, secs. 1364, 3343, subd. 2), and the sheriff is its officer to enforce the process. If the court refuses to interfere, then it inferentially, at least, places its seal of approval, not only upon the defendant’s acts in collecting so much of an illegal judgment as remains unpaid, but it permits such collection to be made by its process and officer. I do not think this the court should do. If the defendant had obtained a divorce in this state, and the judgment had awarded her $200 per month alimony, and she had again married, as she has here done, and the plaintiff had made a motion to be relieved from such payment, the court would have had to grant the motion. The statute so provides (Code Civil Procedure, sec. 1771), and while this statute has no direct bearing on the question being considered, it indicates by its enactment a legislative intent that as a matter of public policy a wife who has a husband with whom she is living should be supported by him and not *115 by one from whom she has been divorced. The defendant on the ground of public policy is in no better position to compel plaintiff to pay the $200 a month than she would be if that'payment were by virtue of a judgment dissolving the marriage contract. Indeed, she is in not nearly as good a position, because the judgment which she holds is clearly illegal, and ought not to be enforced. My conclusion is that the execution which has been issued upon the judgment should be vacated, and the respondent enjoined from taking or attempting to take any further proceeding for the enforcement of the judgment.