
    Law v. Law.
    
      Divorce to wife for aggression of husband — Alimony adjudged wife by agreement of parties — Terms of alimony agreement not subject to modification upon petition filed by husband-, when.
    
    A divorce being decreed for the aggression of the husband, and alimony being adjudged to the wife in accordance with an agreement of the parties, the terms of the decree as to alimony are not, if unaffected by fraud or mistake, subject to modification upon a petition filed by the former husband after the term at which the original decree was made.
    (Decided March 26, 1901.)
    Error to the Circuit Court of Hamilton county.
    On the 1st clay of August, 1889, Carrie B. Law was, by the judgment of the court of common pleas of Hamilton county, divorced from George W. Law for his aggression. After adjudging that the parties be divorced and that the custody of their child, Edith B. Law, should be given to Mrs. Law, the judgment entered made the following provisions as to alimony:
    . “It is further ordered and decreed that the said defendant pay as alimony to said plaintiff, annually, the sum of three thousand dollars (#3,000), payable in monthly installments of two hundred and fifty dollars (#250) each, the first installment to be paid on the first day of August, 1889, and out of which said sum the said plaintiff is to support said Edith, maintain and educate her.
    “It is further ordered and decreed that in case the said plaintiff shall marry, the alimony herein provided and ordered to be paid to her, shall cease from and after said marriage, but the said defendant shall continue to pay to said plaintiff, for the maintenance, support and education of said child, Edith B. Law, the sum of fifteen hundred dollars ($1,500) annually, payable in monthly installments of one hundred and twenty-five dollars ($125) each, and the same shall continue so long as the said Edith B. Law shall remain unmarried.
    “It is further ordered and decreed that said alimony shall cease and wholly determine upon the death of the defendant, George W. LaAv, and that said plaintiff shall have no right, claim or demand to any part of the estate or property which he may leave, on condition, however, that the said George W. Law shall, of the insurance that he now holds upon his life, or which he may hereafter procure, and which he agrees to do, set apart the sum of fifteen thousand dollars ($15,000) for the benefit of said plaintiff, Carrie B. Law, which policies of insurance, in the event of the death of the said George W. Law, shall be payable to and paid to said Carrie B. LaAv, and in case of the death of the said Carrie B. Law before the maturity of the said policies by the death of said George W. Law, the same shall be payable to said child, Edith B. Law, and this insurance in the sum of $15,000, the court, by consent of said defendant, orders and adjudges that he faithfully maintain and keep up for said purpose.
    “It is further, and with the consent of said defendant, ordered and decreed that the said defendant, George W. Law, forthwith secure to the said plaintiff and the said child, Edith B. Law, the payment of the said sum of three thousand dollars ($3,000) annually, in the manner and at the times herein provided, and the procuring, setting apart, keeping and maintaining at all times the policies of insurance upon his life in reliable and responsible companies in the sum of fifteen thousand dollars ($15,000) for the benefit of said plaintiff and the said child, Edith B. Law, as herein provided.
    “It is further, and by and with the consent of said defendant, ordered that the security for the payment of the sums herein provided, and the procuring, setting apart, keeping and maintaining the policies of insurance for the purposes herein declared, shall be subject to the approval and satisfaction of the said plaintiff.
    “It is further ordered, adjudged and decreed, that the provisions herein made for and on behalf of the said Carrie B. Law as to alimony, shall be in lieu of, and in full satisfaction of all claims, rights, interests or demands that said plaintiff has or may have acquired in the property and estate of the said defendant by reason of her marriage to him, and the said plaintiff shall relinquish any and all such interests by instrument in writing duly executed upon the demand of said defendant.”
    On the day preceding the entry of this decree George W. Law, with surety, gave bond to Mrs. Law for the payment of alimony according to the terms which were carried into the decree. On the 11th day of April, 1894, George W. Law filed his petition in the court of common pleas seeking a reduction of the alimony to fifteen hundred dollars a year, and of said insurance to seventy-five hundred dollars on account of reasons occurring after the entry of the decree of August, 1889. Mrs. Law answered denying that any change had occurred to justify a reduction of said amounts, and she alleged in her answer that in so far as the decree of 1889 related to the subject of alimony and insurance they were entered by agreement of the parties. These allegations of the answer were denied in the reply. On a hearing the court of common pleas entered a judgment reducing the alimony from three thousand dollars per annum to eighteen hundred dollars per annum. Mrs. Law took an appeal to the circuit court where, upon a hearing, the alimony was fixed at twenty-two hundred dollars per annum in lieu of the three thousand dollars per annum awarded by the original decree. Afterward she received and accepted the amount adjudged to her by the circuit court. She now seeks a reversal of the judgment by which the amount awarded to her by the terms of the original decree was reduced.
    
      Thomas McDougal; Alfred G. Cassatt and Harmon, Colston, Goldsmith & Hoadley, for plaintiff in error,
    cited the following authorities:
    
      Olney v. Watts, 43 Ohio St., 499; Pretzinger v. Pretzinger, 45 Ohio St., 452; Storey v. Storey, 125 Ill., 608; Collier v. Collier, 66 Ill. App., 484; Buck v. Buck, 60 Ill., 241; Parkhurst v. Parkhurst, 118 Cal., 18; Galusha v. Galusha, 116 N. Y., 635; Petersine v. Thomas, 28 Ohio St., 596; Fischli v. Fischli, 66 U. S. (1 Black.), 360; Semrow v. Semrow, 23 Minn., 214; Julier v. Julier, 62 Ohio St., 90; Stratton v. Stratton, 77 Me., 373; Crews v. Mooney, 74 Mo., 26; 2 Bishop on Mar. & Div. (6 Ed.), Sec. 435; 2 Nelson, Div. & Sep’n, Sec. 915; Kremelsberg v. Kremelsberg, 52 Md., 553; Plaster v. Plaster, 47 Ill., 290; Dow v. Dow, 38 N. H., 188; 2 Nelson on Div. & Sep’n, Sec. 905a, p. 849; 2 Am. & Eng. Ency. (2d ed.), 117; Fuller v. Fuller, 33 Kan., 582; Wilhite v. Wilhite, 41 Kan., 154; Stewart v. Vandervoort, 34 W. Va., 524; Callame v. Callame, 24 N. J. Eq., 444 (cited with approval, Gallagher v. Fleury, 36 Ohio St., 590); Chenault v. Chenault, 5 Sneed, at p. 251; Boggers v. 
      Boggers, 6 Baxter, 300; Bird v. Bird, 1 Lee’s Rep., 621 (A. D. 1754); Aughtie v. Aughtie, 1 Phil. 201 (A. D. 1810); Scrimshire v. Scrimshire, 2 Haggard’s Consistory Rep., 395; Gallagher v. Fleury, 36 Ohio St., 590; Fisher v. Fisher, 32 Iowa, 20; McGee v. McGee, 10 Ga., 477; Wheeler v. Wheeler, 18 Ill., 39; Rogers v. Vines, 6 Ired., 293; Lockridge v. Lockridge, 2 B. Mon., 258; De Blaquiere v. De Blaquiere, 3 Hagg. Rep., 329; Foulkes v. Foulkes (Poynter on Mar. & Div., *p. 256, note “q”); Cox v. Cox. 3 Add., 276; Sammis v. Medbury, 14 R. I., 216; Sampson v. Sampson, 16 Id., 456; Kamp v. Kamp, 59 N. Y., 215; Mitchell v. Mitchell, 20 Kan., 666; Howell v. Howell, 104 Cal., 47; Smith v. Smith, 45 Ala., 267; Fries v. Fries, 1 McArthur (D. C.), 294; King v. King, 38 Ohio St., 370; Woods v. Waddle, 44 Ohio St., 449, Beals v. Lewis, 43 Ohio St., 220; Embry v. Palmer, 107 U. S., 3; Merrian v. Hass, 3 Wall., 687; United States v. Dashiel, 70 U. S. (3 Wall.), 688; Morriss v. Garland, 78 Va., 234; Philips v. Towles, 73 Ala., 411; State v. Railway Co., 21 Nev., 172; Fiedler v. Howard, 99 Wis., 395; Clowes v. Dickenson, 8 Cowen, 327; Higbie v. Westlake, 14 N. Y., 288; Matthews v. Davis, 39 Ohio St., 54; Tabler v. Wiseman, 2 Ohio St., 207; Merritt v. Horne, 5 Ohio St., 307; Elliott on Appellate Procedure, Sec. 151.
    
      William Worthington and Pogue & Pogue, for defendant in error,
    cited the following authorities:
    
      Price v. Price, 10 Ohio St., 316; Reed v. Reed, 17 Ohio St., 563; Taylor v. Taylor, 25 Ohio St., 71; Hixson v. Ogg, 53 Ohio St., 361; Cox v. Cox, 19 Ohio St., 502; Olney v. Watts, 43 Ohio St., 499; Pretzinger v. Pretzinger, 45 Ohio St., 452; Hoffman v. Hoffman, 15 Ohio St., 427; Neil v. Neil, 38 Ohio St., 558; Rogers 
      v. Rogers, 51 Ohio St., 1; Petersine v. Thomas, 28 Ohio St., 596; Stevenson v. Morris, 37 Ohio St., 10; Burckhardt v. Burckhardt, 42 Ohio St., 474; Cincinnati v. Railway Co., 56 Ohio St., 675; In re Potts, 166 U. S., 263; Weidman v. Weidman, 57 Ohio St., 101; Meissner v. Meissner, 5 Circ. Dec., 305 (11 R., 1); Conrad v. Everich, 50 Ohio St., 476; Taylor v. Fitch, 12 Ohio St., 169; Reeves v. Skenett, 13 Ohio St., 574; McRoberts v. Lockwood, 49 Ohio St., 374; Hocking Coal Co. v. Rosser, 53 Ohio St., 12; Beals v. Lewis, 43 Ohio St., 220; Waddington v. Waddington, 27 Mo. App., 596; Alexander v. Alexander, 104 N. Y., 643; Bolen v. Cumby; 53 Ark., 514; Holt v. Rees, 46 Ill., 181; Elliott on Appellate Procedure, Secs. 150-152; 2 Ehcy. Pl. and Prac., pp. 174-177; Cogswall v. Colley, 22 Wis., 399; Webster v. St. Croix, 71 Wis., 317; Shingler v. Martin, 54 Ala., 354; Tyler v. Shea, 4 No. Dak., 377; Railway Co. v. Johnson, 84 Ind., 420; Anglo-American L. M. & A. Co. v. Bush, 84 Iowa, 272; Harte v. Castetter, 38 Neb., 571; Gibson’s Appeal, 108 Pa. St., 245; Brewer v. Connecticut, 9 Ohio, 189; Rosebrough v. Ansley, 35 Ohio St., 107; Pacific Railroad v. Ketchum, 101 U. S., 289; United States v. Babbitt, 104 U. S., 767; Cooch v. Cooch, 18 Ohio, 146; Jackson v. Jackson, 16 Ohio St., 163; Zanesville v. Gas-light Co., 47 Ohio St., 1; Mosier v. Perry, 60 Ohio St., 388; Fulton v. Fulton, 52 Ohio St., 229; Bank v. Owensboro, 173 U. S., 636; Doyle v. Doyle, 50 Ohio St., 330; Grever & Sons v. Taylor, 53 Ohio St., 621; Kerr v. Kerr, 59 How. Prac., 255; King v. King, 38 Ohio St., 370; 2 Bishop’s M. & D., Sec. 553; State v. Hueston, 44 Ohio St., 1; Mays v. Cincinnati, 1 Ohio St., 268; Fitch v. Carroll, 1 Sawyer, 156; South v. Dennison, 2 Watts, 474; Commonwealth v. Murray, 4 Binney, 487; Bartley v. Richtmyer, 4 N. Y., 38; Spoors v. Coen, 44 Ohio St., 497; Bellefontaine v. Vassaux, 55 Ohio St., 323 (36 B., 322); Jack v. Hudnail, 25 Ohio St., 255; Phillips v. Herron, 55 Ohio St., 478; Kamp v. Kamp, 59 N. Y., 212; Erkenbrich v. Erkenbrich, 96 N. Y., 456.
   Bx the Court :

1. The view presented by counsel for the plaintiff in error is that the terms of the original decree, not being affected by fraud or mistake, were conclusive upon the subject of alimony and not subject to modification for any reason. Since no question was reserved by the decree for future consideration, that view receives strong support from Petersine v. Thomas, 28 Ohio St., 596, and from the general course of decisions upon the subject. Authority* for the subsequent modification of the decree is, however, said to be found in the later case of Olney v. Watts, 43 Ohio St., 499. In that case there had been a divorce because of the wife’s aggression, and the holding was that the decree as to alimony, so-called, might be modified upon the petition subsequently filed by the husband for that purpose. If it be assumed that the case was correctly decided, it affords no warrant for the present judgment, for it concedes that where the terms of a decree as to alimony are fixed by the court pursuant to an agreement of the parties they are not subject to modification.

That the terms of the decree of August, 1889, as to alimony, were fixed by agreement of the parties is the proper inference from the testimony of counsel who were concerned in the case. It is rendered certain by the bond executed prior to the decree, whereby the husband bound himself to pay alimony according to the terms of the decree subsequently entered. It is made conclusive by the terms of the decree. The divorce in the present case was on account of the aggression of the husband, and it was therefore a case for alimony properly so called. The wife had not forfeited any of the rights which marriáge gave her in the property of her husband. The concluding terms of the decree against the wife, assented to by her, and precluding the further assertion by her of any interest in the husband’s estate are in law, as they purport to be, in consideration of the antecedent provision as to alimony. The provisions in her favor, being consideration for those which were adverse to her, must be final according to their terms.

2. There is no merit in the contention that Mrs. Law’s acceptance of the amount awarded to her by the circuit court in lieu of the amount fixed by the decree of 1889, estops her from prosecuting this proceeding in error. She has taken nothing by the judgment of the circuit court. • By the terms of the decree of 1889 she became conclusively entitled to all she has received, and more. It can not be said that by accepting a portion of the sum due her by the terms of the original decree she has waived her right to insist upon, payment of the remainder.

Judgment reversed and original petition dismissed.

Minshall, C. J., Williams, Davis and Shauck, JJ., concur.  