Sparks v. . Sparks

Smith, C. J., (after stating the facts). It is to be observed, that the alleged agreement, held by the Court to enter into and vitiate the entire transaction, so as to render both deeds inoperative, is not in any written form, but rests entirely in parol. Hot a word is said about the separation of the parties, unle.-s it be found in the defendant’s stipulation, that he will thereafter “ not attempt to exercise any control over the person or property ” of his wife, which may pre-suppose their future living apart. Again, it would seem that the separation had already taken place, and existed when the arrangement was entered into. The feme, during her husband’s absence, had committed adultery, and had he kept up their connubial relations, it would have been a con-donation of her proved faithlessness to her marriage vows, and he would have been refused a divorce a vinculo matrimonii. This the law did not require of him, and the absolute separation was afterwards secured by the judgment of the Court, in his action against her. The ruling of the Court was probably founded on the case of Collins v. Collins, Phill. Eq., 153, in which Reade, J., after an ■examination of authorities, announces the conclusion arrived at in these words: “ We do not, however, put the case upon the ground of fraud or imposition on the part of the husband, but upon the broad ground that articles of separation between husband and wife, voluntarily entered into by them, either in contemplation of, or after separation, are against law and public policy, and will not be enforced.” It may admit of question, in view of- subsequent changes in the law of marriage, in respect to the property rights of the woman, whether the proposition, in its* unlimited extent, can now be upheld. A voluntary separation, under some circumstances, is recognized as a legal condition, out of which may arise certain powers to be exercised over her estate. *532 “ Every woman who shall be living separate from her husband, either under a judgment of divorce by a competent Court, or under a deed of separation, executed by said husband and wife^ and registered in the county in which she resides,” &c., shall have the effect of making her a free trader. Tiie Code, §1831. This act of legislation, passed in February, 1872, in furtherance of the ■ constitutional provision, by which the property of the woman, on her marriage, is secured to her as separate estate,, implies a possible legal separation of the parties, by voluntary-agreements, and defines her condition and rights resulting therefrom. If such a case can exist and be upheld by law, the facts, of that before us would be one. The wife had, during her husband’s absence, kept up an adulterous intercourse, the fruit and proof of which was found in the birth of a child, whose support was to become a burden upon the husband. Their continued living together thereafter in the marriage relation, was not required by any consideration of law or public policy, and would have denied to him the right to a judicial final separation, which he afterwards obtained. The decision in the case referred to, is-in general terms, that such contracts, merely as such, have no binding obligation which will be enforced, because public policy favors the preservation of the nuptial tie, and is opposed to any arrangement between the parties by which its resultant duties-are evaded. But the principle is, that such an agreement will not be enforced, at the instance of either party, not that what may have-been done in carrying out its purpose will be undone by the Court. It will not assist, when its aid is asked, or in the words-of the Court, its provisions “ will not beenforced in this Court”— a Court exercising equitable functions. The rule that refuses to-compel the execution of such a contract, for similar reasons refuses to relieve from the consequences of what the parties have done under it, in giving it full effect. In York v. Merritt, 77 N. C., 213, the plaintiff sued to recover a tract of land, which under an unlawful and corrupt agreement,. *533 bad been conveyed by the defendant to the plaintiff. The Court, Rea.de, J. speaking for it, said: “ When both parties have united in a transaction to defraud another, or others, or the public, or the due administration of the law, or which is against public policy, or contra bonos mores, the Courts will not enforce it in favor of either party.” The same ruling was made when the case came up on a second appeal, 80 N. C., 285. The rule is departed from, when one of the parties acts “ under circumstances of oppression, imposition, hardship, undueinfluence or great inequality of condition or age, so that his guilt may be far less in degree than that of his associate in the offence.” They must be in pari delicto. 1 Story Eq., §300; Pinckston v. Brown, 3 Jones, Eq., 494; Wright v. Cain, 93 N. C., 296. But the jury negative the plaintiff’s averment that she was induced to execute her deed to Penland, from force used bv the ■defendant, or (as the issue was submitted in this form, and responded to in the negative), by the exercise of any undue means ■on his part. And the acknowledgment in t ie certificate of probate, stands in this respect uncontradicted. We do not see, in the deeds themselves, whereby the husband surrenders his estate by the curtesy in one tract, and acquires the fee in another tract, such inequality and evidence of oppression and wrong, as entitles the plaintiff to the relief she now demands. She has herself committed a grievous, if not unpardonable wrong to her husband, rendering their separation inevitable, and in view of it, they parted, and did what she now seeks to undo, and that separation has been made permanent by a judgment of the Court. Under the circumstances, this Court is not called on to intervene. The judgment must be reversed and the action dismissed, and it is so ■ordered. Error. Reversed.