Hill v. Hill , 74 N.H. 288 ( 1907 )

It is found that the deed of November 22, 1894, was fraudulent and void as respects the plaintiff. In this situation the case stands as though that conveyance had never been made, and the single question for our consideration is whether the agreement of July 20, 1897, is or is not void. The defendants say that it is valid and a complete defence to the plaintiff's position.

When the plaintiff and Samuel D. Hill married, they entered into a relation from which they could not relieve themselves by contract, and which while they live cannot be dissolved except with the assent of the state. So long as that relation continues, the law imposes upon them certain duties and obligations, and confers upon each certain rights in the other's property. If they can make a valid agreement between themselves touching their respective rights in each other's property, — a question not considered, — they cannot make a valid contract renouncing their marital rights; and if covenants of each kind should occur in the same contract, their validity would depend upon whether they were independent and their considerations distinct. If they were not, the whole agreement would be void. Foote v. Nickerson, 70 N.H. 496, 518.

The contract that was made between these parties in July, 1897, includes covenants that contemplate a renunciation of marital as well as a release of property rights; and the validity of the latter covenants, in the aspect of the case here considered, depends upon whether they are independent of the former and based upon distinct considerations. The preamble of the contract discloses that the moving cause for entering into it was the desire of the parties to live separate and apart from each other. With this object in view, they undertook to put an end to their marital duties and obligations and to release such property rights as had arisen out of that relation. Samuel covenanted that the plaintiff might at all times thereafter live separate and apart from him and in such places as she might desire, that she might engage in such business as she saw fit and for her sole benefit, that he would not molest her on account of living apart from him, and that he would pay to her for her support and maintenance the sum of $200; and the plaintiff, in view of their desire to live apart and in consideration of Samuel's covenants that she might do so, agreed to accept the sum of $200 in discharge of his obligations to her, and in case he died before she did, not to make any claim for dower or other interest in his estate, but to receive that sum in full settlement and discharge of all interests of every kind which she might have by virtue of their marital relations. As Samuel's covenant that the plaintiff might live separate and apart from him forms a part, at least, of the consideration for her covenants, and as it cannot be known whether she would have entered into the contract but for his covenant that she might live apart from him, his covenant that she might do so is not independent of, and cannot be separated from, her covenants, and treated as valid, leaving the latter to stand. Foote v. Nickerson, supra; Williams v. Park,72 N.H. 305, 311.

That the renunciation of marital obligations and duties was one of the purposes sought to be accomplished by the contract, is not obscure or doubtful. It was therefore not open to the parties to contradict this express intent by extraneous evidence; and if the evidence from which it was found — that the parties continued to live together for a time after the contract was made — was introduced for this purpose, it was incompetent and immaterial. Bancroft v. Company, 72 N.H. 402, 404; Horne v. Hutchins,72 N.H. 211, 214. If it was introduced for the purpose of showing that the provisions of the contract relating to living apart had been waived, that fact is not found.

In accordance with the order made in the superior court, there should be a decree for the plaintiff.

Case discharged.

WALKER, J., did not sit: the others concurred.