
    SKEEN v. SKEEN.
    (No. 7666.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 23, 1916.)
    1. Insane Persons &wkey;>87 — Divorce—Prosecution by Next Friend.
    Vernon’s ,Sayles’ Ann. Civ. St. 1914, art. 4632, prohibits the granting of a divorce when either spouse is insane, and, where insanity of one of the spouses exists, a next friend, intervening during pendency of the insane spouse’s suit for divorce, cannot prosecute it to a termination.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 155; Dec. Dig. <§^S7.]
    2. Insane Persons <&wkey;87 — Partition of Property — Suit by Insane Wife.
    In view of the law recognizing the rights of husband and wife to agree as to the division of their property when living apart or in view of a separation, in a wife’s suit for divorce, the court, having jurisdiction of the parties, could take charge of their property and grant partition thereof at the instance of the next friend of the wife, although the wife was insane, so that divorce could not be granted.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 155; Dec. Dig. <®=»87.]
    3. Husband and Wife <&wkey;278(l) — Division of Property — Agreement — Enforceable Character.
    Where, at the time of a wife’s suit for divorce and for division of property, her husband was not contributing anything to her support, and for a long time prior thereto each party had determined not to live together, and an agreement for division of property was entered into by them with the authority of each when the wife was of sound mind, the agreement for division was enforceable in the suit at instance of the next friend of the wife, who 'had become insane.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1046-1051, 1053; Dec. Dig. &wkey;278(l)J
    4. Insane Persons <&wkey;94(l) — Suit by Insane Wife — Representation by Next Friend.
    Where a wife suing for divorce and division of property became insane, no guardian being appointed to represent her, it was proper for her to be represented in her suit by next friend.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 164; Dec. Dig. &wkey;>94(l).]
    Appeal from District Court, Delta County; A. P. Dohoney, Judge.
    Suit for divorce and partition of property by Susan Skeen against W|. E. Skeen, wherein J. E. Skeen, as next friend of plaintiff, filed a motion for injunction and judgment dividing the property. From a judgment sustaining defendant’s plea in abatement and dismissing the cause, J. E. Skeen, as next friend, appeals.
    Judgment reversed in part, and case in such respect remanded.
    James Patteson, of Cooper, for appellant. I. B. Lane, of Cooper, for appellee.
   RAINEY, C. J.

On December 12, 1914, Susan Skeen brought suit against her husband, W. E. Skeen, for divorce and partition of their property. On January 18, 1915, the defendant filed a plea in abatement setting up that plaintiff was insane and could not prosecute the suit. On the day last mentioned the court allowed plaintiff alimony in the sum of $50 per month. On January 20, 1915, plaintiff and defendant, by their attorneys and. with their consent, signed and caused to be filed a written agreement partitioning their property. On September 17, 1915, J. E. Skeen, as next friend of plaintiff, filed in said cause a motion alleging that just after signing said agreement plaintiff became insane, and that defendant was collecting the rents from the property so set apart to plaintiff and asked for an injunction restraining defendant from such action and that judgment be entered dividing said property as per said agreement, etc. On October 5, 1915, said J. E. Skeen amended the petition of plaintiff praying for the divorce, setting up the agreement for division of the property, and prayed for judgment. On October 11, 1915, defendant filed his original answer, specially excepting to plaintiff’s petition and alleging that plaintiff was insane and could not maintain the suit. On the same day the case was tried and defendant’s plea in abatement was sustained and the cause dismissed, and J. E. Skeen, as next friend, appeals.

In passing upon the plea in abatement there were no facts presented other than the allegations of the pleadings, about which there seems to be no controversy, except the defendant contends that Susan Skeen was insane when the agreement for division of the property was made, while the plaintiff contends that at said time she was perfectly rational. The pleadings of plaintiff show that in 1903 Susan Skeen became insane and afterwards in a few months became rational, and in 1906 she was again insane for a few months and again became sane, and then in 1909 she was duly adjudged insane by a court of competent jurisdiction and sent to the asylum for the insane, where she remained until about September 10, 1913, when she became sane and was released from the asylum and returned to Delta county; that she was never kept long in the asylum, except from 1909 to 1913, as aforesaid, and that at all other times she would only be insane for a few months at a time; that from the date of her discharge from the asylum to February 1, 1915, she was sane and perfectly in her right mind, then able to contract At the time of trying this case she was insane and confined in the asylum. The agreement for division of the property was entered into before February 1, 1915, and shows it to have been filed with the district clerk of Delta county on January 20, 1915.

On September 17, 1915, J. E. Skeen, as next friend for Susan Skeen, filed a motion in the divorce proceeding setting up the different periods of insanity and the lucid intervals, and her inshnity and confinement in the asylum at that time, and praying for judgment of divorce separating Susan and W. E. Skeen, for a partition of their property as per agreement, and that the injunction thereto granted be perpetuated. Susan Skeen alleged sufficient grounds for divorce, but our statutes on divorce, by amendment to article 4632, provide “that this act shall not apply to any case where either the husband or wife is insane.” Vernon's Sayles’ Civ. Stats. 1914. This provision prohibits the granting of a divorce when either spouse is insane, and we are of the opinion that a next friend, where insanity of one of the spouses exists, who intervenes during the pending of the suit for divorce, cannot prosecute the suit for divorce to a termination. However, in view of our law recognizing the rights of husband and wife to enter into an agreement for the division of their property when living apart or in view of a separation, and the court having jurisdiction of the parties, we see no reason why the court, as alleged in this proceeding, could not take charge of the property and grant a partition thereof at the instance of the next friend of Susan Skeen, who was insane.

J. E. Skeen, the son, made himself a party as next friend and asked that judgment of partition be granted. But the defendant says the agreement for partition was entered into with the view that a decree of divorce was to be granted, and as no decree of divorce was granted the court did not err in rendering a decree for partition and dismissing the case.

Susan Skeen alleged that W. E. Skeen was not contributing anything to her support, and J. E. Skeen, as next friend, alleged in his plea:

“That at the time of the filing of this suit, and long prior thereto, plaintiff and defendant had each and both determined not to live together in life as husband and wife; that the agreement for division was entered into with the authority and consent of each; and that at the time Susan Skeen was of rational and sound mind.”

If these allegations are true, we see no reason why the court below should not have enforced the agreement.

In Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324, in discussing this subject, Mr. Justice Gaines said:

“All deeds for future separation are held to be absolutely void; but where the spouses have already separated, or have determined upon a separation and are in the act of executing it, a conveyance by the husband intended as a provision for the support of the wife will be upheld. In other respects a deed of separation was held void. This was the carefully restricted doctrine at an early day in the English courts, and as so limited it has been universally recognized in the courts of this country. The tendency of the later English eases is to extend to deeds of separation a more liberal support (1 Bishop on Marriage and Divorce, § 634a), while by the weight of authority in the American courts they are held valid in so far as they settle the rights of property between the husband and wife, provided they have been entered into without coercion or other undue influence, and the provisions are just and equitable. (Cit'ing authorities.) In most of the cases cited the I only interest in property relinquished by the ! wife in the agreement was her dower in the husband’s lands. But we think that, in a jurisdiction where the spouses hold each an equal interest in the property acquired during marriage, the same principle should apply to deeds of separation which make a partition of the common property. Unless against the policy of the law, and on that account void, there is no difficulty in giving effect to the conveyances in the present case.”

In Caffey’s v. Caffey’s, 12 Tex. Civ. App. 616, 35 S. W. 738, this court adhered to this doctrine; Lightfoot, C. J., rendering the opinion. In the case of Crouch v. Crouch, 30 Tex. Civ. App. 288, 70 S. W. 595, we upheld the same doctrine.

In view of Susan Skeen’s condition, it was necessary for her property rights to be protected, and, no guardian being appointed to represent her, it was proper for her to be represented by next friend.

The judgment is reversed as to the action of the court in not passing upon the agreement of division of property, and the case in that respect is remanded. 
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