(dissenting).
I am unable to agree with the opinion and judgment of the court in this case. The parties to this appeal were married in Washington, where they lived together until 1929, when they separated under a deed of separation dated April 6.
This instrument recites that whatever property they owned and whatever savings they had were accumulated from the earnings of the husband, and then gave to the wife all the furniture and equipment of their residence, except the husband’s desk; one-half of their funds in hank; one-half of their savings elsewhere; and $100 per month.
The agreement further provided that nei*400ther party should thereafter interfere with or molest the other,-and that, if a divorce should he subsequently obtained and the wife should remarry, her allowance under the agreement should cease.
In September, 1981, the wife did obtain a decree of divorce in a Virginia court, and the monthly payments appear to have continued until January, 1933, when the husband refused to make the payment at that time falling due under the agreement.
Two days later the former wife sued the former husband at law in the municipal court for the monthly installment then due,
I pass over the doubtful question as to whether under our statutes a separation agreement may he enforced elsewhere than in a court of equity. Thompson v. Thompson, 218 U. S. 618, 31 S. Ct. 111, 54 L. Ed. 1180, 30 L. R. A. (N. S.) 1153, 21 Ann. Cas. 921; Notes v. Snyder, 55 App. D. C. 233, 4 F.(2d) 426, 41 A. L. R. 1052 : 30 C. J. 1068.
But the former husband in this proceeding admitted the agreement; payments thereunder up to January, 1933; and his default at that time; but defended on the ground that his wife was then living in Washington with another man, not in marriage, but in what the record calls concubinage, and asserted that his wife’s conduct constituted a violation of the separation agreement, justifying his refusal to make further payments to her thereunder.
His attorney, in his opening statement, which in the circumstances must he taken as true, though it may be otherwise in fact, named the man with whom the wife was living and the house where they lived in the District of Columbia, but the trial court refused to hear evidence, and gave judgment for the wife on her motion, holding that the wife’s living in adultery, if true, was immaterial to any question before the court, and that her former husband was required to continue his payments to her in those circumstances under the separation agreement and the law.
This court now affirms that judgment, and, while I am aware of the weight of authority that supports it in England, where the question has been spoken of as settled for two hundred years, as well as in New York, New Jersey, and Pennsylvania, where sundry decisions affirm it, in my opinion it should not be made the law of this jurisdiction by affirmance of any summary judgment on a motion.
The only cases in this court bearing on the subject look directly the other way upon a related question, though the precise point appears never to have been here decided.
But it has been decided by this court that, when a wife takes a conveyance jointly with her husband of the property constituting their residence, she takes under an implied condition of chastity, and, if she thereafter commits adultery, she cannot seek the aid of a court to give her a division of the property. And further, that, if a husband is awarded a divorce because of his wife’s adultery, she forfeits her interest in real estate standing in their joint names, but purchased with the husband’s money. Moore v. Moore, 51 App. D. C. 304, 278 F. 1017; Osborne v. Osborne, 59 App. D. C. 288, 40 F.(2d) 800.
' My objection to this decision is that it follows the letter of the agreement to the exclusion of the spirit, and that it raises a private right based upon a private contract above important considerations of public policy.
For this court would surely strike down this contract as violating public policy if it stated in express terms what the court now interprets it to mean, namely, that the former wife is entitled to receive the allowance from her former husband so long as she lives in adultery, but must forfeit it if she marries her alleged paramour and lives with him under the law.
If this doctrine is to be made the law of this jurisdiction, it should not be done upon a summary judgment based upon a mere motion, but only after a plenary hearing where all the facts are developed by evidence, if for no other reason, because this court has decided that common-law. marriages are lawful in this District, and the facts may show that the lady is living under circumstances constituting a valid common-law marriage. Hoage v. Murch Brothers Construction Co., 60 App.. D. C. 218, 50 F.(2d) 983.
In that event, if the letter of the contract is to govern the situation as the court holds, the contingency has arisen which terminates the allowance, for the contract speaks only of a marriage — not of a ceremonial marriage —and this requirement is satisfied by a common-law marriage as well as by another.
In my opinion, the judgment below should be reversed and the cause remanded for a new trial upon evidence developing all- the facts.