
    FANNY J. BEARDSLEY v. JOHN P. BASS, Administrator of Estate of HERBERT C. BEARDSLEY, and ESTELLA B. BASS, Appellants.
    Division One,
    April 9, 1921.
    HUSBAND AND WIFE: Contract Looking to Divorce Void: NonSeverable Clauses. A married couple entered into a contract whereby the husband agreed to pay the wife $200 per month during the rest of her life unless she should decide that she wished to remarry, in which case he was to secure a divorce on the grounds of desertion, the monthly payment to start as soon as the wife should leave him and to cease when he should be notified of her desire to remarry. Other clauses provided that he should keep alive a certain $12,000 policy of life insurance for her benefit, to be discontinued, however, upon her remarriage; that if he died first she should inherit all his property, provided she had not remarried in the meantime; that she should at any time sign any deed or other instrument necessary to enable him to conduct his real estate or other business; that she should in no way interfere with or obstruct him in the conduct of his business; that in case of her remarriage she should transfer to him all her rights in his property and in any property that they might have conjointly; that she would sign no legal paper of any kind without his permission, and would incur no debt to be paid by him; and that the furniture in the fiat then occupied by them should be sold and the proceeds divided equally between them. Held, first, that this contract in its entirety was void, because it was intended to promote and facilitate a divorce; and, second, that the other provisions could not be validated by eliminating the divorce clause, since the contract was not severable.
    Appeal from Buchanan Circuit Court. — Hon. Lawrence A. Vories, Judge.
    Reversed.
    
      W. B. Norris and W. M. Morton for appellants.
    Contracts facilitating actions for divorce are void and illegal and any promise founded on such an agreement is not enforceable. Blank v. Nohl, 112 Mo. 169; Hudson v. Hudson, 176 Mo. App. 69; McDonald v. McDonald, 175'Mo. App. 513; Banner v. Banner, 184 Mo. App. 396; Hamilton v. Hamilton, 89 111. 349; Sayles v. Sayles, 21 N. H. 312; Davis v. Hinman, 73 Neb. 850, 103 N. W. 668; Barngrover v. Pettigrew, 128 Iowa, 533, 104 N. W. 904; Muckenberg v. Haller, 29 Ind. 139; Seelly’s Appeal, 56 Conn. 202, 14 Atl. 2:91; Smutzer v. Stinson, 9 Colo. App. 326, 48 Pac. 314; Beard v. Beard, 65 Cal. 354, 4 Pac. 229.
    
      Eastin & McNcely for respondent.
    The contract is legal. 9 Cyc. 521; 21 Cyc. 1592; Uarbut v. Bolling, 81 Mo. 214; Rough v. Rough, 195 S. W. 501. It contains no illegal provision. The words complained of are: ‘ ‘Unless the said party of the second part should decide that she wishes to remarry, in which case it is fully agreed that the said party of the first part shall secure a divorce on the ground of desertion.” The situation of the parties, as it is made to appear by the whole contract, must be considered in arriving at a correct interpretation of this language. The agreement is one for permanent separation. The husband agrees to pay the wife $200 per month while she is living apart from him and “during the rest of her life.” By a succeeding paragraph he agrees “to continue the payments (on life insurance) which is and shall be payable to the party of the second part at the decease of the said party of. the first part.” The parties therefore contemplate that they shall remain husband and wife, even though separated, until the relation shall be dissolved by the death' of one of them. If the wife should decide that she wanted to re-marry, that would be an abandonment or desertion, and would give the husband the right to a divorce, and he also claimed the right (and it was so written in the contract) to a cessation of the payments he had agreed to make. Even if the divorce provision is illegal it i§ separate from the other parts of the eon-tract and they are enforcible. Wharton, Contracts, sec. 338; McCnllongh v. Smith, 243 Fed. 832; Rosenblatt v. Townsley, 73 Mo. 536.
   WOODSON, P. J.

This is a bill in equity brought by the plaintiff against the defendants in the Circuit Court of Buchanan County to specifically enforce a contract made and entered into between husband and wife as set forth in the petition, which reads as follows:

“Plaintiff for cause of action against the defendants states that she is the widow of Herbert C. Beardsley deceased; that defendant John P. Bass is the administrator of the estate of Herbert C. Beardsley, deceased, duly appointed and qualified by thé Probate Court of Buchanan County, and that defendant, Estella B. Bass, is the wife of said John P. Bass, administrator aforesaid, and only surviving sister of Herbert C. Beardsley, deceased; that said Herbert C. Beardsley left surviving him no child or children and no descendant of a deceased child and no brother or sister other than the said Estella B. Bass.
Plaintiff further states that on the 2'0th day of November, 1916, she entered into a contract with said Herbert C. Beardsley, by the terms of which the said Herbert C. Beardsley for a valuable consideration agreed either to convey or assign or devise to plaintiff, all the property, real or personal, which he might own at the date of his death; that said contract is in words and figures as follows:
“ ‘This agreement, made and entered into this 20th day of November, 1916, by Herbert C. Beardsley, party of the first part, and Fannie C. Beardsley, party of the second part, both parties being of Buchanan County, State of Missouri, as follows:
Said party of the first part agrees to pay to the said party of the second part, while the said party of the second part is living apart from the said party of the first part, the sum of $200 per month or $46.16 per week during the rest of her life, unless the said party of the second part should decide that she wishes to re-marry, in which, case it is fully agreed that the said party of the first part shall secure a divorce on the grounds of desertion and said payments to be made by him shall cease from the date he is notified that the said party of the second part wishes to marry again. These payments are to start as soon as said party of the second part leaves the said party of the first part.
“ ‘It is further agreed that the said party of the first part shall continue the payments on the $12,000 policy of life insurance in the New York Life Insurance Company, which is and shall be payable to the said party of the second part at the decease of the said party of the first part as per term of said policy. Said insurance to be discontinued at the re-marriage of the said party of the second part.
“ ‘It is further agreed that if the party of the first part should die before the party of the second part, that she, the party of the second part, is to inherit all realty and such other property that is in the name of the said party of the first part at the time of his demise, provided, that she has not remarried by that time.
“ ‘It is further agreed by the party of the second part that she will at any time sign promptly any deeds- or other instruments of writing necessary for said party of first part to properly trade, transfer or otherwise conduct his real estate or any other business that he may be engaged in.
.“ ‘It is further agreed that the said party of the second part will in no way interfere with or obstruct the said party of the first part in the conduct of any business that he is in or may engage in, or in any employment that he may seek or hold.
“ ‘It is further agreed that in case of the re-marriage by the said party of the second part, that she will, previous to said marriage, transfer by proper deed, all rights, title and interest that she may have at that time in any or all property of said party, of the first part to him and all rights, title or interest that she may have in any property, real or personal, held conjointly by both parties to this agreement.
“ ‘It is further agreed by the said party of the second part that she will sign no legal papers of any kind, notes or other articles of indebtedness, without the permission and consent of said party of the first part. That she- will incur no bills or other indebtedness that will have to be paid by the said party of the first part.
“ ‘It is further agreed that the furniture, etc., now-contained in the fiat at 216 V-j North Eighth Street, St. Joseph, Mo., now occupied by the two parties to this contract, shall be sold and the proceeds divided equally between the two parties agreeing herewith, excepting (a) such articles that have been given as presents to the said party of the second part, which are and shall be her individual property, (b) such books as the said party of the first part may want, also one writing desk.
“ ‘We, the said parties of the first and second pari have herewith attached our signatures to the above articles of agreement, in duplicate, one copy to be kept by each party, the day and date above mentioned at St. Joseph, Buchanan County, Missouri.’ ”

To this bill the defendants filed a demurrer, which the court overruled and the defendants declining to plead further, rendered a decree for the plaintiff as prayed for.

From that judgment the defendants duly appealed to this court.

T. Several errors are assigned, but from the view we take of the case it will be necessary to consider but one of them, and that is that the contract shows upon its fact that it was a contract of separation made by and between husband and wife, and for a decree of divorce to be rendered in a case to be brought by him against her upon the grounds of desertion. The contract in that regard reads: that the husband was to pay the wife $200 per month unless she should decide that she wanted to remarry, in which case it was agreed that “he shall secure a divorce on the grounds of desertion and said payments to be made by him shall cease from date that he is notified that the said party of the second part wishes to marry again. ’ ’

This contract clearly contravenes Section 2371, Revised Statutes 1909, which provides that ‘ ‘ the petition [for divorce] shall state the facts of the case, and be 'accompanied by an affidavit that the facts stated herein are true, and that the complaint is not made out of levity or by collusion, fear or restraint between the parties for the mere purpose of being’ separated from each other, but,” etc.

Counsel for respondent, with more plausibility than sound argument, contends that this clause can be eliminated from said contract and not change the meaning thereof, and the remainder would still constitute a valid and binding contract, and therefore enforcable in a court of equity.

After careful consideration of that argument we are unable to lend our concurrence thereto, and do not believe that the contract would ever have been entered into, had that clause been omitted at the time of its execution.

For the reasons stated we are of the opinion that the contract was void, and non-enforceable and for that reason the judgment of the circuit court is reversed and a decree is here rendered for the defendants. Graves, J., concurs in separate opinion,

in which James T. Blair and Elder, JJ., concur.

GRAVES, J.

(concurring). — I concur in the result reached by my learned brother in this case but do not agree that the statute he cites is relevant to the issues involved. This statute only pertains to pleadings in a divorce suit. It has no reference to contracts which are void as against public policy. It is true that the same public policy which voids collusive contracts as to divorces prompted this statutory provision as to pleadings in a divorce suit. But this statute does not make contracts void.

The real question is whether or not the contract pleaded is void because violative of public policy. The learned counsel for respondent contend (1) that the contract is not void as being against public policy, and (2) that if a portion of the contract is void for such reason, such portion is severable from the remaining portions, and the remaining portions can be specifically enforced. Appellants contend contra on. both propositions.

In Blank v. Nohl, 112 Mo. l. c. 169, it is said: “The authorities are numerous to the effect that any agreement that the defendant in a divorce suit will not make a defense, or having for its object the dissolution of a marriage contract, or designed to promote and facilitate a divorce is void, because opposed to the policy of the law; and any promise founded on such an agreement is also void, and should not be enforced.”

The italics, supra, are ours. This is the public policy of Missouri succinctly stated, and we do not understand that respondent’s counsel seriously controvert this view. They' contend that the contract set out in the petition does no violence to this rule of law. They urge that if the wife decided to marry again that such decision would amount to desertion, and the contract only provides for a right which the husband would have under the law, i. e. sue for divorce because he had been deserted. The particular clause reads: “Unless the said party of the second part should decide that she wishes to re-marry, in which case it is fully agreed that the said party of the first part shall secure a divorce on the grounds of desertion and said payments to be made by him shall cease from the date that he is notified that the said party of the second part wishes to marry again.”

The italics, supra, are ours. Note the use of the word “shall” as used, supra. There is nothing left (if the contract is to be lived up to) but for the husband to sue the wife for divorce whenever she notifies him that she desires to marry again. But this is not all.-' No fair interpretation of this contract can exclude the idea that the parties were likewise agreeing that there should be no defense made to the suit which the contract compellecl the husband to bring. This idea is not expressed in definite terras but the whole tenor of the instrument so shows.

This clause, in my judgment, voids the whole contract. I do not believe that it is severable from the remaining clauses. It constitutes a vital portion of the agreement. It gives tinge and color to the whole instrument. It was ‘ ‘ designed to promote and facilitate a divorce. ” To the wife it says, all you have to do is say you want to marry again and your husband must sue you for divorce. Inter alia, it further indicates to her “but if he does, you must not defend.” I feel that this contract cannot be upheld, and that the judgment in .the circuit court is wrong and should be reversed and judgment entered here dismissing plaintiff’s bill.

James T. Blair and Elder, JJ., concur in these views.  