Wyant v. Lesher

The opinion of the Court was delivered by Woodward, J. Two grounds of defence were assumed on the trial, which the Court sustained as a bar to the plaintiff’s action, and which I proceed to notice in their order. In the first place, it was objected that the consideration mentioned in the bond was illegal and against the policy of the law. The seals imputed a consideration, and the compromise of a prosecution for bastardy, as was decided in Mitchell v. Maurer, 9 W. & Ser., was an adequate consideration for the bond; but it is argued that the bond must [341] be judged by the consideration set forth in it, and that this, being illegal, tainted whatever other consideration may be found growing out of the transaction. Without stopping to inquire how far an illegal consideration can operate to impair an entire contract where there are other good considerations to sustain it, the two considerations mentioned in this bond may be confidently pronounced legal and valid. What are they ? 1st, that Mary had had a child to John Lesher, which in effect is past cohabitation, a consideration which has always been held sufficient to support a settlement or an agreement to pay money; and 2d, the father’s agreement that John might marry Mary, whieh is said to be nothing because she was of' age and capable of contracting marriage without her father’s consent. A father’s consent can never be an unimportant fact in a daughter’s nuptials. Where she resides in his family, he'stands in loco parentis, notwithstanding she has attained her majority. He has a right to advise her matrimonial choice. He is bound not only in morals, but by statute law, to support her and her children, if otherwise unprovided for; and her expectations from his estate may be materially influenced by her marriage with or without his consent. If there be nothing in the filial relation to render the paternal blessing a thing of value, these considerations show that there are possible inconveniences to the father, and advantages to the son-in-law, which, on the strictest principles of contract, are sufficient to hold him to such an obligation as the present. In what does the imagined illegality of the consideration of this bond consist ? Is it immoral for a seducer to provide for the victim of his passions and the offspring of their guilt ? Illegal for a suitor to propitiate parental consent to a daughter’s marriage by a promise that he will live with and treat her as a kind and affectionate husband ought ? It would be a disgrace to our age and generation if the law compelled an affirmative answer. But it does not. Such motives for a promise are legal and reasonable, and afford abundant ground for sustaining it; especially when, as here, though made to the father, it is intended for the benefit of the daughter and her child. A second objection urged against the plaintiff’s recovery is that the bond itself is against public policy, illegal, and void. The defendants bound themselves in the sum of $500 that John should treat Mary “ as a loving and affectionate husband ought to do, and not desert her; and if the said John Lesher, after marriage, shall or will maltreat, abuse, or desert the said Mary C. Wyant, then the said obligors to pay the said Jacob E. Wyant the aforesaid sum of $500 for the use and support of the said Mary C. Wyant and her heirs.” Though equity will not always lend its aid to enforce articles of separation between husband and wife, yet post-nuptial contracts between them for a separate maintenance of the wife have often been decreed; an example of which, similar [342] in many of its circumstances to the present case, may be seen in Seeling v. Crawley, 2 Vernon 386; and the general doctrine will be found fully discussed in Lehr v. Beaver, 8 W. & Ser. 104. Here, however, the contract was ante-nuptial; and although made between parties competent to contract, is supposed nevertheless to be against policy, because looking to a future separation, and tending to encourage domestic feuds and broils. The idea is, that such a contract gives a wife an interest in disobedience, and renders her more independent by misconduct than by the most strict observance of marriage duties. Mr. Clancy, in his work on Married Women, p. 422, felicitates himself that Hoar v. Hoar, reported in 2 Ridgway’s Parl Cases 268, is the sole example of a compact before marriage of so mischievous tendency which has found its way into courts of justice. I have examined that case attentively, and the contract (which related to personal property of the wife before marriage) was fully' enforced against the husband in the House of Lords, on proof of his ill-treatment and desertion of the wife. In our own books I have found no case on the precise point; but I apprehend the principles continually recognised in marriage settlements, articles of separation, and settlements of bastardy eases, justify the contract before us. In the two first-mentioned class of contracts, the object in view is the maintenance of the wife and her children, in the event of the husband’s inability or unwillingness to provide for them; and in the case of bastardy, the support of the infant; and these are purposes sanctioned by public policy, morals, and law. I see no more tendency in such a contract as this bond, to disturb the harmony of conjugal life, than in a marriage settlement, or in articles entered into after marriage looking to a future separation. This husband stipulated simply for the performance of his duty, and a faithful discharge of that was the surest way to preserve peace in his family. Among the most imperative of the duties assumed in the marriage contract, were the support and maintenance of his wife and child, and for these it was prudent in her father to exact from him a security additional to the marriage vow. If there were failure here the bond is forfeit, and the plaintiff should have a verdict ; but whether the conditions of the bond have been violated or not is a question for the jury, to whom the evidence ought to have been submitted. The judgment is reversed and a venire de novo awarded.