Brown v. Brown

205 N.C. 64

Opinions

Clarkson, J.

The only question involved on this appeal is whether the consent judgment and separation agreement made between plaintiff and defendant is a bar to plaintiff’s action under O. S., 1666. We think so.

A separation agreement between husband and wife must be fair and reasonable and entered into without coercion or undue influence. Separation agreements are not favored by law, but under certain circumstances are recognized by statutes when signed in conformity thereto. C. S., 2515, 2516, 2529; Taylor v. Taylor, 197 N. C., 197, 148 S. E., 171.

The terms of a separation agreement between husband and wife were enforced in Peeler v. Peeler, 202 N. C., 123. One of the provisions in this separation agreement between plaintiff and defendant is clearly stated as follows: “The said E. A. Brown and Mary Belle Brown do mutually agree to live separate and apart from one another, and in consideration of the said conveyance of real estate, to her, the said Mary Belle Brown agrees and by these presents does agree to release and relinquish all right of support, all right of dower, and all other personal and property rights which she might have acquired, against the person or property of the said E. A. Brown .by virtue of the aforesaid marriage, and she does further agree to abandon, relinquish, and release the said E. A. Brown of all and every right of suit that she might have against him by reason of any act of abandonment that he might have committed in the past, and further agrees to release him of any claim which she might have against him by reason of the aforesaid marriage.”

Defendant has fully performed his part o'f the separation agreement with plaintiff and consent judgment. Plaintiff received certain property on the distinct agreement that it was to release and relinquish all right of support she had by virtue of her marital rights with defendant. She was sui juris when she consented to the judgment and made the agreement — no fraud or mistake is alleged on her part. We think that she is estopped by the judgment and agreement.

We do not think Bailey v. Bailey, 127 N. C., 474, applicable. At p. 475, it is said: “No separation is hinted at, even, and the matter seems to have been purely a business transaction in reference to the property owned by each of the parties to the instrument.” The agreement did not indicate that the parties were living separate and apart, and the language did not in clear terms, as the present “release and relinquish all right of support,” etc. In the Bailey case the parties were living together and expected to continue, and the husband to support his wife.

The court below set forth in the judgment: “After due inquiry the court being of the opinion that the division of the property as set out in the separation agreement, is a fair and equitable one and not in any way injurious to the plaintiffs,” etc.

The court below also stated in the judgment: “The action is allowed to remain on the calendar o£ the Orange Superior Court for the determination of the question of divorce sued for in said complaint, and for this purpose only.” This action is also for divorce a mensa ei ihoro under C. S., 1660, and it is retained for that purpose. Lentz v. Lentz, 193 N. C., 742. See Sanders v. Sanders, 167 N. C., 317; Archbell v. Archbell, 158 N. C., 408. The judgment of the court below is

Affirmed.