I am unable to concur in the opinion of the majority.
This is the wife's bill praying performance of an agreement between herself and her husband, made while a divorce suit between them was pending. The agreement comprehends alimony and maintenance and is based, not only on the duty of a husband to support a wife but upon a relinquishment of the wife's inchoate dower right and a release of her rights in his real and personal property as well. She made no application for alimony, relying on the agreement and, furthermore, she surrendered her right of dower and whatever rights she had in the husband's property. She prays a decree for the installments due and owing under the agreement, and which are in arrears.
That equity is powerless to compel the performance of this class of contract in futuro is admitted. That equity is powerless to award a decree for the installments past due is denied. Head v. Head (English Chancery Reports), 3 Atk.547; Calame v. Calame, 25 N.J. Eq. 548; Aspinwall v.Aspinwall, 49 N.J. Eq. 302; Mockridge v. Mockridge, 62 N.J. Eq. 570, and other cases. Nor does this view conflict, as I understand the cases, with Apfelbaum v. Apfelbaum, 111 N.J. Eq. 529, or Second National Bank v. Curie, 116 N.J. Eq. 101.
Equity has the power to compel the husband to pay that which he promised to pay and that which now is in default.
Having these views, I therefore vote to affirm the decree.
For affirmance — THE CHIEF-JUSTICE, HETFIELD, JJ. 2.
For reversal — LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 10. *Page 465