
    Henry Belden, Appellant, vs. William R. Munger, Trustee of Roxa Belden, Respondent.
    APPEAL PROM. THE DISTRICT COURT OF WASHINGTON OOUNTY.
    Pending an action for divorce, the husband (Plaintiff) entered into an arrangement with the wife, to transfer to a third party, certain personal property, to be held by him until the action for diyorce should be determined, and if the wife did not appear in said action and claim alimony, then the property was to be transferred to a Trustee to hold for the use and benefit of the Defendant. The property was deposited, and the wife neglected to appear, and did not set up any claim for alimony, but after the divorce was obtained, the party ^holding the property refused to deliver it' to the Trustee in pursuance of the agreement. In an action to recover the value of the property_ Held that such an agreement would have been equally against public policy, though the husband and wife had not joined in it, so long as it was the intention of the parties, to effect by means thereof, the dissolution of a marriage contract. The parties to the agreement practiced a fraud upon tho Court and the administration of justice, and no action lies to recover under such a contract.
    Points and authorities of Appellant.
    Tbe agreement set up in tbe complaint is against tbe policy of tbe law, illegal and void, and tbe Judge erred in refusing to charge tbe jury. Fol. 10, dkc ; Section, 562, Story - on Contracts; Dwrcmtvs. Fitley, 7 Price JR. 577; 9 Barn a/nd Cress, 200, 202.
    Gold T. Curtis, Counsel for Appellant.
    Sanford & Beveridge, Counsel for Respondent.
   ■By the Court.

Emmett, C. J.

Tbe right of Plaintiff to recover in this action depends upon tbe following facts which appear from tbe record : It seems tbat one Lucius M. Beldeu bad commenced proceedings in tbe District Court, to procure a divorce from' bis wife Eoxa Belden. Tbat during tbe pen-dency of said action, be entered into an arrangement witb ber, through tbe parties to tbe present action, by wbicb be agreed, in consideration tbat she would not appear in said action for divorce, and set up a claim to alimony, tbat be would transfer to Henry Belden, tbe Defendant herein, four promissory notes, which be then held [against one Charles A. Belden, and wbicb were secured by a mortgage on certain real estate, in trust to be held by said Henry,'until said action for divorce should be determined; and, if said Eoxa did not appear in said action, and claim alimony, then to deliver them to Hunger, tbe Plaintiff herein, to be by him held and collectad for tbe use and, benefit of said Eoxa. That pursuant to said arrangement, tbe notes were deposited witb tbe Defendant, and tbe said Eoxa thereupon neglected to appear in said action, and did Hot set up any claim for alimony, and said divorce Was accordingly granted by tbe Court, without any provision for her maintenance' — and tbat after tbe divorce was thus obtained, tbe defendant refused, on demand, to deliver tbe notes to tbe Plaintiff. Tbe Plaintiff thereupon commenced tbe present action, alleging in detail tbe foregoing facts, and tbat tbe mortgage was ample security for tbe notes : and claiming judgment for tbe amount of said notes. The answer put in issue all of tbe facts stated in tbe complaint, except tbat concerning tbe pendency of tbe action for divorce, and alleged further tbat tbe notes were placed in bis bands by said Lucius, for tbe use, and to be disposed of according to tbe directions of Charles A. Belden, and tbat before tbe commencement of this action he had returned them to said Lucius by direction of said Charles. There was no reply, and on tbe trial tbe jury returned a general verdict in favor of tbe Plaintiff for tbe amount of tbe notes.

Quite a number of questions as to tbe rulings and charge of tbe Court, tbe sufficiency of tbe evidence to justify tbe verdict, etc., were raised during tbe trial, and on tbe motion for a new trial, but we think it is only necessary to decide upon the validity of the contract which lies at the foundation of the action.

Whatever of doubt may have existed as to the end to be accomplished by the agreement set forth in the complaint, is dissipated by the construction put upon it by the parties in their subsequent conduct. It was insisted that the agreement, on the part of the wife did not extend beyond what she should receive in lieu of alimony, in the event that the Court should decree a separation; and yet we find that she was very careful not to appear in the action and resist the divorce. This we are satisfied would not have been the case, had not the agreement involved as well her non-appearance in the action, as that she should make no claim to alimony. The language of the contract is in the conjunctive: “ That the said Roxa would not appear in said action and interpose her claim for alimony, ” &c. She evidently understood it as including both, and acted accordingly. Certain it is to our mind, that this contract was the sole inducement for her default in resisting the action. Its sole object was to facilitate the husband in obtaining the divorce sought by the action then pending, by a compromise as to the alimony. ' In effect the parties dissolved the marriage tie existing between them by agreement. The husband^agreed to give a certain sum in lieu of the maintainance to which the wife was entitled out of his property, and in consideration therefor, she agreed not to appear in the action, and to make no claim for alimony. There was a flimsy disguise of the real nature of the transaction, by the introduction of third persons as Trustees, but not sufficient for the purpose intended. It is apparent that Trustees were interposed in hope of avoiding the very difficulty we are now considering, and perhaps also to obviate the objection against a husband contracting directly with his wife. But the great objection here is not so much to the parties by whom the contract was made, as to the nature and object of the contract itself. Suchf an agreeme et would have been equally against public policy, though the husband and wife had not joined in it, so long as it was the intention of the parties to effect by means thereof, the dissolution of a marriage ■contract.

We were advised on tbe argument tbat to refuse to enforce this contract would work great hardship in this particular case, because, as was asserted, the wife will be thrown, in the decline of life upon an uncharitable world, without support or maintainance, while the husband is in the enjoyment of ample means, which she assisted in accumulating, and is lavishing them on another whom he has since married. If such be the fact we can but regret it, but it must be remembered that it has resulted from the ill advised contract of the wife in aiding her husband to procure a divorce. Had the Court known that the parties to that proceeding had entered into such an agreement as that sought to be enforced by this action, and that the Defendant therein had received or was to receive a consideration for not appearing and defending, we are warranted in saying that a separation would never have been decreed. The concealment of this agreement, and, the conduct of the parties to the proceedings for divorce, were .a fraud upon the Court, and the administration of justice, and there is no principle that will warrant us in aiding a party to secure the fruits of a contract, intended, as this was, to practice a fraud both upon the law and the' Court that administered it.

The order denying a new trial is reversed and a new trial awarded.  