Suit by Leander J. Giddings, individually and as administrator of the estate of Harriet Giddings, deceased, and others against William J. Giddings, individually and as administrator of the estate of C.M. Giddings, deceased, and others to impress a trust pursuant to a contract to make a will. From a decree for the defendants, the plaintiffs appeal.
AFFIRMED. REHEARING GRANTED AND FORMER OPINION ADHERED TO. This is a suit to impress a trust on real and personal properties pursuant to a contract to make a will and for declaratory and injunctive relief auxiliary thereto. The properties are those belonging to the estate of C.M. Giddings, deceased.
On July 9, 1920, a written contract was executed by said C.M. Giddings and Harriet Giddings, now deceased, who were then married to each other, and on July 20, 1920, said contract was modified by another written agreement executed by C.M. and Harriet Giddings. These written instruments form the basis of plaintiffs' cause of suit.
Plaintiffs and defendant, William J. Giddings, are the only children of C.M. Giddings and Harriet Giddings. Defendant, William J. Giddings, is the administrator of the estate of C.M. Giddings, deceased.
On or about the 26th day of December, 1934, said C.M. Giddings and Harriet Giddings entered into an agreement which purported to annul, render void and cancel the contract of July 9, 1920. Plaintiffs contend that this contract of December 26, 1934, is wholly void and inoperative for indefiniteness, uncertainty, want of mutuality and want of consideration.
The view we entertain of the record herein renders it necessary to discuss only the question whether the agreement of July 9, 1920, as amended on July 20, 1920, was an illegal contract. In fairness to the record, however, copies of the purported contracts are here presented.
The following is a copy of the agreement of July 9, 1920:
"This Contract, Made and entered into by and between Calvin M. Giddings, party of the first part and *Page 507 Harriet Giddings, party of the second part, both parties of the State of Oregon, Witnesseth:
That Whereas, the parties hereto are husband and wife and have been for a number of years and have a family of grown sons;
And Whereas, differences and disagreements have arisen between the parties hereto until the parties cannot live together in peace and harmony;
And Whereas, they are desirous of a settlement of their financial and property rights between themselves without interferences of any court or persons other than themselves.
It is, therefore, mutually agreed by and between the parties hereto that, for and in consideration of the promises and agreements of the party of the second part hereinafter mentioned and set forth, that the party of the first part will, and he hereby agrees to pay to the party of the second part, the sum of Sixty Dollars ($60.00) per month, to be paid on or before the 10th day of each and every month commencing with the 10th day of July, 1920, and continuing so long as the party of the second part shall live and will on this date, and contemporaneous with the signing and delivering of this contract, pay to the party of the second part the sum of Twenty-Two Hundred Dollars ($2200.00) in Liberty Bonds, by delivering the same to the party of the second part, and to turn over to the party of the second part one-third of the purchase price for a tract of land belonging to the party of the first part situated near Gray Station in Linn County, Oregon, which is now being sold to W.J. Giddings for the sum of Twelve Thousand ($12,000), which said land is more particularly described in deed from G.C. Turner and wife to M.A. Blower, said deed being recorded in Books of Deeds, Vol. 103, at page 326, Records of Linn County, Oregon, and recorded on the 28th day of August, 1913, and when said sale is consummated, one-third of the purchase price thereof, whether made in cash or notes secured by a mortgage, shall be taken in the name of the party of the second *Page 508 part and paid to the party of the second part, and two-thirds thereof taken in the name of the party of the first part, and two-thirds of the payments made to be made direct to the party of the first part, it being understood that one-third of the purchase price shall go to the party of the second part, and two-thirds thereof to the party of the first part.
It is further stipulated and agreed that the party of the first part will build a comfortable modern dwelling house, the same to have a suitable fireplace, on the tract of land immediately West and adjoining the property on which stands the dwelling house now occupied by the parties hereto, which dwelling house shall be according to the plans and designs made by Leander J. Giddings, Harriet Giddings, and the party of the first part hereto, and the party of the first part is to make a deed to the said lands upon which said dwelling house is to be erected, conveying the same to the party of the second part.
It is further stipulated and agreed that the party of the second part may occupy the home belonging to and now occupied by the party of the first part, and situated in Albany, Oregon, until such time as the dwelling house to be built shall be completed.
It is further stipulated and agreed that the party of the second part may remove the necessary furniture from the dwelling now occupied by the parties hereto to the new dwelling house as soon as the same shall be completed for the purpose of furnishing the same for occupancy, and the party of the first part is to furnish to the party of the second part a good new electric sweeper.
It is further stipulated and agreed that in the event the party of the first part should die before the party of the second part that one-third of the lands, money and property that the party of the first part may own and possess at his death shall go to the party of the second part to be hers and used by her, and she to have the rents, issues and profits thereof during her natural life, but the principal and original property, if *Page 509 any, shall go to the children of the party of the first part and the party of the second part, they being the children of the two.
It is further stipulated and agreed that the party of the second part, for and in consideration of the promises and agreements hereinabove made, to be kept by the party of the first part and by him performed, hereby agrees and does hereby waive all interest, right and title, whether in equity or in law, in and to all of the property that may belong to the party of the first part either now or that he may hereafter obtain, and that in the event of the death of the first party before the party of the second part, that she, the said second party, will not claim any interest, right or equity, in the estate of the party of the first part.
It is further stipulated and agreed that in the event a divorce is obtained by either of the parties hereto, or in the event a suit shall be brought for that purpose, the other party hereto will not claim any alimony, suit money, or any money for the support of the other or the support of the children, nor will either claim any interest in the property of the other, nor will either of the parties, or the party bringing said suit, and the party obtaining said divorce, if one shall be granted, will not receive or accept any judgment or decree for either suit money, alimony or maintenance, but the party bringing said suit shall pay the expenses and costs of said proceedings, whether a divorce is obtained or not.
It is further stipulated and agreed that all of the children of the parties hereto are of the age of majority or of sufficient age to take care of and maintain themselves, and that it becomes unnecessary to have any contract or judgment or decree for their maintenance, care or protection.
It is further stipulated and agreed that the parties hereto will not, in any manner, interfere with the personal or business affairs of the other or make any effort to injure the other in any way, shape or form, or manner. *Page 510
In Witness Whereof, we hereunto set our hands and seals in duplicate this the 9th day of July, 1920.
Done in presence of: Calvin M Giddings Seal Party of the First Part. Robert K. Burton Elizabeth B. Burton Harriet Giddings (Seal) Wm. J. Giddings" Party of the Second Part
The modification of the foregoing agreement, made on July 20, 1920, provided that the second paragraph thereof providing for "a comfortable modern dwelling house" should be amended and modified so as to read as follows:
"It is further stipulated and agreed that the party of the first part will purchase the materials, let contracts or hire laborers and generally manage the construction of a dwelling house on a tract of land which the party of the first part has deeded to the party of the second part, which tract of land is situated on the North side of Sixth Street between Baker and Montgomery Streets in the City of Albany, Oregon. It is understood and agreed that said dwelling house shall be constructed upon plans furnished by the party of the second part. The party of the first part agrees to pay the sum of $1500.00 toward the construction of said dwelling house and if the cost of the construction of said dwelling house, which cost is to include the total expense for all labor and materials, exceeds $1500.00 the party of the second part is to pay the excess above $1500.00. If the total cost of the construction of said dwelling house is less than $1500.00 then and in that event the party of the first part agrees to pay to the party of the second part in cash the difference between the total cost of construction of said dwelling and said sum of $1500.00. It is agreed that the party of the first part shall make no charge to the party of the second part for his services in managing the construction of said dwelling house and that his services are not to be included in the cost of the construction of the same as hereinbefore specified." *Page 511
The contract dated December 26, 1934, is as follows:
"This agreement entered into by and between Mrs. H. Giddings of Albany, Oregon and C.M. Giddings of Corvallis, Oregon, agrees that certain contracts dated July 9, 1920 shall be considered null and void and cancelled and that C.M. Giddings agrees to pay to Mrs. H. Giddings sixty dollars per month and that at his death the Administrator is to pay to her the interest from the Jenks loan during her life and that if the interest does not amount to sixty dollars per month he shall pay her enough from the principal to make it sixty dollars per month.
At the death of Mrs. H. Giddings the balance remaining from the Jenks loan is to be divided between the legal heirs of C.M. Giddings.
H. Giddings Signed and sealed this 26th day of C.M. Giddings. December, 1934 in the presence of: Luther Giddings Paul C. Giddings."
We are of the opinion that the original contract of July 9, 1920, being the one upon which plaintiffs' cause of suit rests, was and is unenforcible because of illegality.
Eighteen days after that contract was signed, namely, on July 27, 1920, a divorce was granted to C.M. Giddings by the circuit court of Multnomah county.
Bearing in mind that at the time the parties were residents of Linn county; that the contract deals plainly with the question of alimony and costs of obtaining a divorce and waiver of rights otherwise attendant upon divorce; and, taking into consideration the testimony introduced by plaintiffs, as to the procurement of that contract, we can come to no other conclusion than that it was an unenforcible contract. *Page 512
The plaintiff, Leander J. Giddings, testified as follows:
"Q. Did he [referring to C.M. Giddings] have anything to say to you with reference to seeing your mother about obtaining a divorce?
A. He did.
Q. What was that?
A. Why, he came to me while I was operating a sawmill out near St. Paul.
Q. Oregon?
A. Yes, St. Paul, Oregon, and asked me to intercede with mother, who always opposed a divorce. She had religious rules against it. To intercede with mother in an attempt to have her agree to allow him to get a divorce.
Mr. Oehler: If the Court pleases, this is all this line of testimony to which we have our objection.
The Court: Yes, you have objected to it. I understand.
Mr. Carson: What else if anything did he say about it to the best of your memory?
A. Well, he put it up to me pretty strong. I told him that I thought it would take a good deal of talking to get mother to agree to a divorce. He admitted that he couldn't get one unless she allowed it to go on, and he said that he was in a tight place and had to have it.
Q. Did he elaborate any on what he meant by tight place?
A. No, I think not.
Q. Did you talk with your mother about that?
A. Yes.
Q. And what transpired on that occasion?
A. Well, I just simply put it up to mother, that if dad was in a tight place where he had to have a divorce to save him that neither she nor I were interested in seeing any harm come to him and that it would be best for her to let it go on.
Q. What did she say about that?
A. Well, she finally assented." *Page 513
The plaintiff, Paul C. Giddings, testified as follows:
"Q. Did your father ever talk to you, or did you ever overhear him say anything about this proposed divorce between him and your mother?
A. I was in a very similar position to Lee perhaps in that regard, inasmuch as I had been living at home most of the time. He came to me and wanted me to try and talk mother into having a divorce.
Q. Did he say why?
A. He said he had to have it. That he was in a tight spot or in a fix, or something of the sort.
* * * *
Q. Did you speak to your mother about the matter?
A. No, sir.
Mr. Oehler: `About the matter'. About getting the divorce?
Mr. Carson: Yes, Well, I mean about getting the divorce.
A. Oh, yes I did.
Q. What did you say to her to the best of your memory?
A. Well, I said it looked like when a person wanted a divorce as bad as he did about the only thing was to give it to him."
Plaintiff, Luther Giddings, was in Utah when the contract of July 9, 1920, was executed. Over the objection of defendants' counsel and the ruling of the court, plaintiffs' counsel took the following testimony "under the rule", in answer to a question whether he had heard anything from the parties relative to the background of that, referring to the divorce between Harriet Giddings and C.M. Giddings:
"A. Mother wrote to me prior to the divorce that father was urging it, and she was apparently very much worried over it." [End of quotation from testimony.]
"The welfare of society is so deeply interested in the preservation of the marriage relation, and so *Page 514 fraught with evil is regarded whatever is calculated to impair its usefulness, or designed to terminate it, that it has long been the settled policy of the law to guard and maintain it with a watchful vigilance. Although marriage, in the eye of the law, is a civil contract, unlike any other contract, it cannot be rescinded or annulled by consent of the parties to it. By mutual consent, if the parties are of the proper age and capacity, the marriage relation may be created and receive the sanction of the law, but it cannot dissolve or terminate it. That high office can only be performed by a court of competent jurisdiction, for some specified cause prescribed by law, upon proof taken in a suit for that purpose. The good order and well being of society, as well as the laws of this state, require this. And so strict and careful are courts in the administration of this justice, out of regard for the public morals and the general welfare of society, that they will esteem it their duty to interfere upon their own motion whenever it appears the dissolution is sought to be effected by the connivance or collusion of the parties; and all contrivances or agreements, having for their object the termination of the marriage contract, or designed to facilitate or procure it, will be declared illegal and void against public policy." Phillips v. Thorp, 10 Or. 494.
See also Hodler v. Hodler, 95 Or. 180, 185 P. 241, 187 P. 604, 109 A.L.R. 846.
In dealing with illegal contracts, — "If the illegality appears from the complaint or the plaintiff's case, the court will, at any stage of the proceedings, dismiss the action, although such illegality is not pleaded as a defense, or insisted upon by the parties, and may have been expressly waived by them. It is an objection which the court itself is bound to raise in the due administration of justice, regardless of the wishes of the parties: Oscanyan v. Arms Co. 103 U.S. 261 (26 L. Ed. 539); Buchtel v. Evans, 21 Or. 309 (28 P. 67); Ah Doon v. Smith,25 Or. 89 (34 P. 1093); Bradfelt *Page 515 v. Cooke, 27 Or. 194 (40 P. 1, 50 Am. St. Rep. 701); Miller v. Hirschberg, 27 Or. 522 (40 P. 506); Pacific Livestock Co. v. Gentry, 38 Or. 275 (61 P. 422, 65 P. 597; Cullison v. Downing, 42 Or. 377 (71 P. 70); Kreamer v. Earl, 91 Cal. 112 (27 P. 735)." Jackson v. Baker, 48 Or. 155, 85 P. 512.
See also Mitchell v. Coach, 83 Or. 45, 153 P. 478, 162 P. 1058; Rosenkrantz v. Barde, 107 Or. 338, 214 P. 893; NewportConstruction Co. v. Porter, 118 Or. 127, 246 P. 211; Vnuk v.Patterson, 118 Or. 602, 247 P. 766, 47 A.L.R. 394.
Clearly the illegality of the contract of July 9, 1920, appears from plaintiffs' case. For that reason, the order of the circuit court dismissing this suit is affirmed; and it is ordered that neither party recover costs or disbursements herein.