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 the 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 20th 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 device 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 *Page 396 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. *Page 397
"`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 flat at 216½ 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 part 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.
I. 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 *Page 398 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.