The rulings of the court sustaining the defendant's demurrer to each of the two amended complaints are the reasons of appeal assigned. The plaintiff is not entitled to have reviewed the ruling of the court upon the demurrer to the first amended complaint. The filing of the second amended complaint was a withdrawal of the first.
It is alleged as a ground of demurrer, that the contract described is not one which, either in law or equity, could be entered into between husband and wife, and that it is void both in law and equity as contrary to good morals and against public policy.
Equity does not recognize the same right in husband and wife to contract with each other that they would have at common law were they single. Contracts made in good faith upon a valuable consideration, and which are just and reasonable and certain in their terms, will be enforced in equity; but courts of equity will examine them with great caution before it will confirm them. Hinman v. Parkis, 33 Conn. 188; Schouler on Dom. Rel. § 191.
Among the contracts between husband and wife which are thus supported by courts of equity, are certain agreements, made either with or without the intervention of a trustee, for the maintenance of the wife living separate from her husband.
The principle upon which they are sustained is, not that the separation should be enforced, nor that it is lawful for the parties to contract to separate, but that when they are living apart for causes rendering such separation reasonably necessary, the agreement of the husband to perform his duty to furnish support for his wife should be carried out. No agreement looking to a future separation of husband and wife, nor for her maintenance after such future separation, will be maintained by a court of equity. 2 Story on Eq. Jur. §§ 1427, 1428.
That the basis of the action of a court of equity in sustaining certain contracts between husband and wife for the separate *Page 221 maintenance of the latter is the existence of an actual, reasonable ground for separation, and not a frivolous or immoral one, or one which offends public policy, is clearly shown by the majority opinion in the case of Nichols v.Palmer, 5 Day, 47.
Chief Justice Cooley, in Randall v. Randall, 37 Mich. 563,571, said, with reference to the enforcement of such contracts in equity: "We apprehend there was never any impediment to their (husband and wife) dealing with each other on the basis of contract, when no consideration of public policy prevented it; in other words, when the occasion required it, and when the contract in view of the relations of the parties was one proper and suitable to be made. . . . It is not the policy of the law to encourage such separations, or to favor them by supporting such agreements as are calculated to bring them about."
Chancellor Walworth, in Carson v. Murray, 3 Paige, 483, 500, deprecates in strong terms the policy of maintaining agreements between husband and wife for a separation, even when made with the intervention of a trustee. "It may well be doubted," says he, "whether public policy does not forbid any agreement for a separation between husband and wife, except under the sanction of a court of justice; and whether it does not also require that such agreements should be limited to those cases where by the previous misconduct of one of the parties the other is entitled to have the marriage contract dissolved, either wholly or partially, by a decree of the competent tribunal." Similar views are expressed by Justice Davis in Walker v. Walker, 9 Wall. 743, 750; 2 Story on Eq. Jur. § 1427; Bishop on Mar. Div. Sep. 1264-1280; Schouler on Dom. Rel. §§ 215-217.
In Stebbins v. Morris, 19 Mont. 115, 120, in which a complaint for the enforcement of a provision for the support of the wife in an agreement of separation was demurred to, it was held that the general doctrine as to enforcing agreements of separation was subject to certain limitations. We quote from the opinion: "An agreement for a separation which is to take place in the future is void as against public policy. *Page 222 So, too, after such an agreement is entered into, its terms must be immediately complied with on peril of nullity. And at the time of the making of such an agreement the relations between the husband and wife must be of such a character as to render the separation a matter of reasonable necessity for the health or happiness of the one or the other. There must be a moving cause for it in addition to the mere mutual volition of the parties. If it is the outcome of mutual caprice only, or a reckless disregard of the obligation of the marriage tie, then the courts will not enforce it. In almost all the cases that we have investigated . . . the court has had before it an unhappy condition of marital relations as a moving cause of the contract. Judges have carefully discriminated between agreements of separation, outgrowths of domestic sorrow, entered into for the purpose of avoiding public scandal or notoriety, and those which have resulted from a wanton or reckless disregard of one of the highest obligations of life, — the duty which the husband and wife mutually owe to each other and to the public at large."
The mutual enjoyment by the contracting parties of the society and affection of each other, the establishment of the home and the family, the birth of children in a wedlock which is both actual and apparent, and the control of them in infancy by both parents, are essential purposes of the marriage relation. Contracts of the parties tending to defeat them will not be sustained either in law or equity. The public have vital interest in the question whether husband and wife may contract to live apart after their marriage.
JUDGE PARDEE said in Seeley's Appeal, 56 Conn. 202, 205: "Inasmuch as the State rests upon the family and is vitally interested in the permanency of a marriage relation once established, it, for the promotion of public welfare, and of private morals as well, makes itself a party to every marriage contract entered into within its jurisdiction." It was held in that case that the law would not recognize an agreement between husband and wife which provided that he should pay to her a certain sum in consideration of her promise not to claim alimony in a divorce suit to be commenced by her. *Page 223
Whether the situation of the parties in the case before us was such as to render the agreement between them a proper and reasonably necessary one, and whether its terms and purpose are such that a court of equity ought to enforce it, must be ascertained by reference to the language of the complaint.
As the complaint alleges that the plaintiff was the wife of Patrick Boland, we are bound to assume that she was lawfully married to him, notwithstanding the somewhat peculiar statement which follows, that "said marriage relation was entered into subsequent to April 20th, 1877."
It does not appear from the complaint that the plaintiff ever lived with her alleged husband as his wife, or was supported by him, or was ever known as his wife, or that she ever assumed his name. On the contrary, from the statements in the second complaint it would seem that he had never openly lived with her as his wife, and was unwilling to do so, and that she was still living with her relatives and friends, and that the agreement contemplated not a change for the purpose of her living apart from him, but from her relatives and friends.
But if we could assume from the language of the complaint that they had ever lived together, the promise of the plaintiff which is alleged as a part of the consideration of the agreement of Patrick Boland to transfer the savings bank books, was that they should live apart in the future. Her promise was as set forth in the complaint, "to leave her relatives and friends" and "to go to Hartford and live among strangers," etc. The agreement is alleged to have been made on the 4th of July, 1896, and "on divers other days prior thereto and since" said day. It is not alleged to have been in writing. There appear to have been no domestic difficulties. Their personal relations seem to have been pleasant; nor does there appear to have been any reason why it should be desirable that she should leave her relatives and friends and go to Hartford to live among strangers, unless it was that under those circumstances they might more conveniently meet than while she resided with her relatives and friends, and that at the same time they might conceal their true relations from the *Page 224 public. The agreement was evidently not for the termination or suspension of their relations as husband and wife, but for the concealment of those relations for an indefinite period.
By the agreement this mode of life was to continue for an indefinite period, "until he should be willing to take her to his own home." Read in the light of the other averments of this complaint, this seems to mean until such time as he should be willing to acknowledge her as his wife. As the price of her consent to live in this manner, whether for a short or long period, she was to receive $10,000.
Assuming that she commenced the fulfillment of her part of the contract immediately after it was entered into, she so lived for the period of about one year, when, upon his death, his entire estate is alleged to have been valued at $15,000, one half of which, if the allegations of the complaint are true, she is entitled to receive under the statute of distribution, irrespective of the question of the validity of this agreement.
This contract set forth in the second amended complaint is clearly not one of those which, though made directly between husband and wife, will be enforced in equity. By its terms the husband and wife were voluntarily to live apart, not only without adequate cause, but in a manner and for purposes which are against good morals and the public welfare.
The demurrers to the first and second amended complaints were properly sustained.
There is no error.
In this opinion the other judges concurred.