
    Betsy Kistler, Appellant, v. Bertie M. Heartburg et al., Appellees.
    
    No. 16,082.
    
      Contracts — Cancellation—Executed Separation Agreement of Husband and Wife — Divorce Contemplated. A judgment affirmed refusing to set aside the results of an executed written contract between a husband and wife relating to a division of property, notwithstanding it recited an agreement not to contest a divorce suit if one should be instituted.
    Appeal from Shawnee district court; Alston W. Dana, judge.
    Opinion filed November 6, 1909.
    Affirmed.
    
      J. J. Schenck, and L. H. Greenwood, for the appellant.
    
      Matt T. Campbell, and J. B. Larimer, for the appellees.
   Per Curiam:

The decision of this case is controlled by the two opinions in the case of King v. Mollohan, 61 Kan. 683, 692. Separation agreements are not per se contrary to public policy, and neither fraud, collusion nor improper purpose appears. On the contrary, the contract and agreed facts show a separation for 'cause, contemplated as immediate and immediately taking place. The matter of a divorce was merely a contingency which might or might not arise. The real purpose was to adjust property and other rights, and not to facilitate a divorce. If an immediate divorce had been in contemplation the parties would have done no more than express what the parties in the Mollohan case agreed upon but omitted from the writing. It may be conceded the agreement not to contest if a divorce suit followed was void, but that was not the thing which induced the contract or the consideration upon which the lawful stipulations depended, and it may be disregarded. If, however, the whole contract be treated as void, it was fully executed as to all subjects embraced in this controversy, and, consequently, as in the Mollohan case, will not be disturbed. There is no claim that the property arrangement effected according to the contract was unfair, unjust or inequitable.

The judgment is affirmed.  