Rowe v. Young , 123 Ark. 303 ( 1916 )

Kirby, J.,

(after stating the facts). Appellant contends that the court erred in overruling his demurrer to the' complaint and also in sustaining the demurrer to the answer and cross-complaint, appellee’s contention being that the deed of trust was contrary to public policy and void, being a contract in effect to divorce man and wife.

Society and the State have a vital interest in marriage and the law favors the marriage relation and does not sanction or uphold contracts intended to promote diForce or an abandonment of such relation, and contracts of the kind are held void as opposed to the public good, and upon principles promotive of the public welfare. 9 Cyc. 519. In an exhaustive note to Pierce v. Cobb, 44 L. R. A. (N. S.) 379, the editor states: “Hence it is well settled by unanimous decision that any contract intended or calculated to facilitate the obtaining of a divorce or to promote the dissolution of the marriage relation, is void as against public policy.” Numerous cases in support of the statement are therein cited and reviewed.

The clause of the trust deed, providing “And Robt. A. Rowe agrees to procure a divorce at Anna Young’s cost” with the allegations of the complaint that “plaintiff agreed to execute the instrument if it would guarantee him a divorce from the said Anna Young, and finally if there was a clause inserted in it to the effect that the said Anna Young was to be divorced from him without cost to himself # * * that he refused to sign said deed of trust unless he was assured that in doing so would guarantee to him that his wife would obtain a divorce at her own cost and that this was made a consideration of said instrument,” showed that it was executed for the purpose .of procuring a divorce between the parties and with that end in view and being a contract or evidence of such an one, contravenes sound public policy and is void.

The parties being already separated and living apart could make a contract for the division of the property and a valid conveyance of it for the purpose, and if such agreement and conveyance had been only to release the appellant from the payment of any cost or attorney’s fees in the divorce proceeding, if one was obtained áfter the separation agreement made and the deed of trust executed, it. would not have rendered the instrument void.

Our law holds the husband liable to the payment of certain costs and attorneys fees in suits for divorce by the wife, but this agreement stipulates that appellant, one of the trustees in the instrument, agrees to procure a divorce at Anna Young’s cost; and although, the allegations of the complaint that the plaintiff agreed to execute the instrument only if it would guarantee him a divorce from his wife, Anna Young, .and refused to sign it unless this clause was inserted and made a consideration therein, are denied by the answer, it was admitted that the deed of trust which was an exhibit to the complaint was executed, and that it contains the clause already set out. The exhibits to the pleadings may be considered on demurrer and even control the allegations thereof, and a fair construction -of the deed brings the instrument within that class of contracts for procuring divorces, which are held void as against public policy.

No error was committed in the chancellor’s ruling, and the decree is affirmed.