Crittenden v. Crittenden , 1890 Ill. App. LEXIS 267 ( 1891 )

Gary, J.

Any narrative of the relations of these parties, which preceded and led to the making of the contract copied below, while it might divert, would not profit whoever may hereafter read this opinion.

That contract is:

“ Whereas, Frank A. Crittenden, of Detroit, Michigan, is about to contract marriage with Elizabeth Childs Sampson, and it is agreed that, as preliminary to said marriage, said Crittenden shall settle upon said Elizabeth an estate in lieu of all future claims for support, and in consideration thereof, that said Crittenden" shall not be obliged to furnish said Elizabeth with any further support.

“How, therefore, in consideration of the premises, the said Crittenden hereby agrees to convey to said Elizabeth one of the sections of land owned by him in Valley county, ¡Nebraska, equal in value to any of the six sections of land owned by him in the State of Nebraska.

“And, whereas, all of his Nebraska land is subject to a mortgage of six thousand ($8,000) dollars due in August, 1893, it is further agreed that said Crittenden shall pay said incumbrance, or remove the same from the land to be conveyed to said Elizabeth, and also shall pay all taxes and assessments on said land until he shall remove said incumbrance. The said land, when conveyed and relieved from incumbrance, to be in full of all claims of said Elizabeth upon said Crittenden for support, and all right of dower in any estáte of which he may die seized. And in consideration of the foregoing, the said Elizabeth hereby agrees to accept the said land on the condition aforesaid; and further upon the aforesaid performance on the part of said Crittenden, not to molest said Crittenden, or permit her friends to do so in any form.

“ And it is further agreed that said parties, after the completion of said marriage, shall live apart from each other always.

“ Witness our hand and seals this 23d day of January, A. D. 1889.

“ Frank A. Crittenden, [seal.]

“Elizabeth C. Sampson, [seal.]”

Whether the last stipulation of the contract has been strictly observed is disputed between the parties. The land has been conveyed as agreed, but the incumbrance on it remains; it has not been removed, which was the condition upon which she should take it in full of all claims upon him for support. Whether courts would give .any effect to an agreement between a man and woman, made before marriage, that after marriage they should not sustain to each other the relation of husband and wife, is a question not necessarily arising on this record. Whether such an agreement would be void on grounds of public policy, and whether the principle applicable to the delivery of deeds applies to marriage, might be made the subject of long arguments.

The latter principle as stated in Leiter v. Pike, 127 Ill. 287, where the opinion of the Supreme Court and of this court both appear, is, that declarations, accompanying acts to which the law attaches particular effects, denying such effects, do not prevent the operation of the law. See, also, Bacon’s Abr. “ Conditions, (L) of repugnant Conditions.”

The reason why it is not necessary now to consider that matter is that upon the evidence heard below, it is not improbable that the parties have clandestinely treated each other as they ought not to have done, if they were not married, and thereby the stipulation to live apart is gone. Shelthar v. Gregory, 2 Wend. 422.

They were married on the day the contract is dated. On the 21st of November following she filed this bill for separate maintenance.

June 25, 1890, the order from which this appeal was taken, allowing her §6 per week temporary alimony, and §25 solicitor’s fees, was entered.

The evidence as to the cohabitation, and the means and necessities of the parties, was such as to make the conclusions of fact by the court below, justifying the order, final, and it is therefore affirmed.

Temporary alimony, in suits for separate maintenance, has been so often sanctioned by this court, that there is no need to cite cases.

Order affirmed.