The opinion of the court was delivered by
Johnston, J.:
The validity of the post-nuptial agreement by which a division of the property was effected is the controlling question in the case. Under our statute the wife is capable of contracting with her husband, and it has been held that the conveyance of property directly from one to the other will be upheld so far as it is equitable to do so. (Munger v. Baldridge, 41 Kan. 236, 21 Pac. 159.) In Kansas there are not the obstacles to a contract between husband and wife that exist in some of the states, nor is there the same necessity for the intervention of a trustee in conveying or transferring property from one to another. Marriage settlements controlling the division and affecting the descent of property, which are intelligently made and are just and equitable in their provisions, are sanctioned by the courts. (Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537.) The settlement in the present case appears to have been intelligently made, as the parties had the advice and assistance of able lawyers ; and that its provisions are fair, reasonable and just to both of the parties is not open to dispute.
The contention here is that the contract of the spouses was a usurpation of the power conferred on the courts alone, and an attempt to abrogate the marriage contract, and for that.reason must be held a nullity. It is true that the contract was made in contemplation and in the execution of an immediate [688] separation, and also that there was an unexpressed purpose that a divorce should at once be obtained which would effect an absolute dissolution of the marriage relation. The conjugal obligations cannot be canceled nor the marriage relation annulled by the mere agreements of the parties. The marriage relation is not on the footing of an ordinary contract, as the public has an interest in the status of the parties and in the fulfilment of the obligations and duties which the husband and wife mutually owe to each other. Public policy, therefore, forbids an agreement which encourages or facilitates a dissolution of the marriage relation, or which provides for a separation which is to take place some time in the future. So, in Neddo v. Neddo, 56 Kan. 512, 44 Pac. 2, certain provisions of the contract which seemed to invite disagreement and dissolution were condemned, and it was said that “no marriage settlement ought to be upheld which invites and encourages a violation of the marriage vow.” The state guards the sanctity of marriage, and demands the fulfilment of its obligations, and therefore the law will not allow parties to release themselves from marital relations or annul the marriage contract at pleasure. Much controversy has arisen as to the validity of separation agreements, and although judges have frequently and in strong language deprecated the cause and effect of them, and condemned agreements by which they were accomplished, it may be regarded as settled law in England and this country that a valid agreement may be made for an immediate separation between husband and wife whose relations are such as to make it inevitable, or where the conduct of one is such as to render a separation necessary for the health and happiness of the other.
[689] In Walker v. Walker, 9 Wall. 743, 19 L. Ed. 814, Justice Davis said:
“It is contended that deeds of separation between husband and wife cannot be upheld, because it is against public policy to allow parties who sustain that relation to avoid their duties and responsibilities by entering into an agreement which contemplates a partial dissolution of the marriage contract. If the question were before us, unaffected by decision, it would present difficulties, for it cannot be doubted'that there are serious objections to voluntary separations between married persons. But contracts of this nature for the separate maintenance of the wife, through the intervention of a trustee, have received the sanction of the courts in England and in this country for so long a period of time that the law on the subject may be considered as settled.”
In Randall v. Randall, 37 Mich. 563, Judge Cooley, in voicing the decision of the court, said:
“It is not the policy of the law to encourage such separations, or to favor them by supporting such arrangements as are calculated to bring them about. - It has accordingly been decided that articles calculated to favor a separation which has not yet taken-place will not be supported; (Durant v. Titley, 7 Price, 577; St. John v. St. John, 11 Ves. 526; Westmeath v. Westmeath, Jac. 126,) but when a separation has actually taken place, or when it has been fully decided upon, and the articles contemplate a suitable provision for the wife and children, or an equitable and suitable division of the property, the benefits of which both have enjoyed during the coverture, no principle of public policy is disturbed by them.”
Among the other authorities sustaining separations the following may be cited : Compton against Collinson, 2 Brown’s Ch. 377 ; Worrall v. Jacob, 3 Merrivale, 266 ; Jee v. Thurlow, 2 Barn. & Cr. 547 ; Webster v. Webster, 23 Eng. L. & Eq. 216; Carson v. Murray, 3 Pai. Ch. [690] (N. Y.) 483; Nichols v. Palmer, 5 Day, (Conn.) 47 ; Hutton v. Duey, 3 Barr (Pa. St.) 100; Commonwealth v. Richards, 131 Pa. St. 209, 18 Atl. 1007; John Bettle v. Andrew W. Wilson, 14 Ohio, 257; Thomas v. Brown and others, 10 Ohio St. 247; Chapman v. Gray, 8 Ga. 841; Wells v. Stout, 9 Cal. 479 ; Garbut v. Bowling, 81 Mo. 214; Dutton v. Dutton and another, 30 Ind. 452 ; Hilbish v. Hattle, 145 Ind. 59, 44 N. E. 20, 33 L. R. A. 783 ; Fox v. Davis, 113 Mass. 255 ; Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324; Storey v. Storey, 125 Ill. 608, 18 N. E. 329; Stebbins v. Morris, 19 Mont. 115, 47 Pac. 642; Schoul. Dom. Rel., 5th ed., §218; Tiff. Pers. & Dom. Rel. 168.
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The opinion of the court was delivered by
Johnston, J.:
The validity of the post-nuptial agreement by which a division of the property was effected is the controlling question in the case. Under our statute the wife is capable of contracting with her husband, and it has been held that the conveyance of property directly from one to the other will be upheld so far as it is equitable to do so. (Munger v. Baldridge, 41 Kan. 236, 21 Pac. 159.) In Kansas there are not the obstacles to a contract between husband and wife that exist in some of the states, nor is there the same necessity for the intervention of a trustee in conveying or transferring property from one to another. Marriage settlements controlling the division and affecting the descent of property, which are intelligently made and are just and equitable in their provisions, are sanctioned by the courts. (Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537.) The settlement in the present case appears to have been intelligently made, as the parties had the advice and assistance of able lawyers ; and that its provisions are fair, reasonable and just to both of the parties is not open to dispute.
The contention here is that the contract of the spouses was a usurpation of the power conferred on the courts alone, and an attempt to abrogate the marriage contract, and for that.reason must be held a nullity. It is true that the contract was made in contemplation and in the execution of an immediate [688] separation, and also that there was an unexpressed purpose that a divorce should at once be obtained which would effect an absolute dissolution of the marriage relation. The conjugal obligations cannot be canceled nor the marriage relation annulled by the mere agreements of the parties. The marriage relation is not on the footing of an ordinary contract, as the public has an interest in the status of the parties and in the fulfilment of the obligations and duties which the husband and wife mutually owe to each other. Public policy, therefore, forbids an agreement which encourages or facilitates a dissolution of the marriage relation, or which provides for a separation which is to take place some time in the future. So, in Neddo v. Neddo, 56 Kan. 512, 44 Pac. 2, certain provisions of the contract which seemed to invite disagreement and dissolution were condemned, and it was said that “no marriage settlement ought to be upheld which invites and encourages a violation of the marriage vow.” The state guards the sanctity of marriage, and demands the fulfilment of its obligations, and therefore the law will not allow parties to release themselves from marital relations or annul the marriage contract at pleasure. Much controversy has arisen as to the validity of separation agreements, and although judges have frequently and in strong language deprecated the cause and effect of them, and condemned agreements by which they were accomplished, it may be regarded as settled law in England and this country that a valid agreement may be made for an immediate separation between husband and wife whose relations are such as to make it inevitable, or where the conduct of one is such as to render a separation necessary for the health and happiness of the other.
[689] In Walker v. Walker, 9 Wall. 743, 19 L. Ed. 814, Justice Davis said:
“It is contended that deeds of separation between husband and wife cannot be upheld, because it is against public policy to allow parties who sustain that relation to avoid their duties and responsibilities by entering into an agreement which contemplates a partial dissolution of the marriage contract. If the question were before us, unaffected by decision, it would present difficulties, for it cannot be doubted'that there are serious objections to voluntary separations between married persons. But contracts of this nature for the separate maintenance of the wife, through the intervention of a trustee, have received the sanction of the courts in England and in this country for so long a period of time that the law on the subject may be considered as settled.”
In Randall v. Randall, 37 Mich. 563, Judge Cooley, in voicing the decision of the court, said:
“It is not the policy of the law to encourage such separations, or to favor them by supporting such arrangements as are calculated to bring them about. - It has accordingly been decided that articles calculated to favor a separation which has not yet taken-place will not be supported; (Durant v. Titley, 7 Price, 577; St. John v. St. John, 11 Ves. 526; Westmeath v. Westmeath, Jac. 126,) but when a separation has actually taken place, or when it has been fully decided upon, and the articles contemplate a suitable provision for the wife and children, or an equitable and suitable division of the property, the benefits of which both have enjoyed during the coverture, no principle of public policy is disturbed by them.”
Among the other authorities sustaining separations the following may be cited : Compton against Collinson, 2 Brown’s Ch. 377 ; Worrall v. Jacob, 3 Merrivale, 266 ; Jee v. Thurlow, 2 Barn. & Cr. 547 ; Webster v. Webster, 23 Eng. L. & Eq. 216; Carson v. Murray, 3 Pai. Ch. [690] (N. Y.) 483; Nichols v. Palmer, 5 Day, (Conn.) 47 ; Hutton v. Duey, 3 Barr (Pa. St.) 100; Commonwealth v. Richards, 131 Pa. St. 209, 18 Atl. 1007; John Bettle v. Andrew W. Wilson, 14 Ohio, 257; Thomas v. Brown and others, 10 Ohio St. 247; Chapman v. Gray, 8 Ga. 841; Wells v. Stout, 9 Cal. 479 ; Garbut v. Bowling, 81 Mo. 214; Dutton v. Dutton and another, 30 Ind. 452 ; Hilbish v. Hattle, 145 Ind. 59, 44 N. E. 20, 33 L. R. A. 783 ; Fox v. Davis, 113 Mass. 255 ; Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324; Storey v. Storey, 125 Ill. 608, 18 N. E. 329; Stebbins v. Morris, 19 Mont. 115, 47 Pac. 642; Schoul. Dom. Rel., 5th ed., §218; Tiff. Pers. & Dom. Rel. 168.
It was not alleged or proved that there was any fraud or collusion in making the contract, or that it resulted from the mutual caprice of the parties. The separation was simultaneous with the execution of the contract, and hence it is not to be regarded as' an agreement to break the conjugal relation at some future time. It is argued that the stipulation that the husband shall “stay away from his wife's place and not molest her or trespass on her premises ” in effect provided against a reconciliation between the parties or a resumption of the marital relations. We do not view it in that light. It was in effect a stipulation that thereafter he should not annoy or molest her. His conduct toward her had been such as to make it necessary that they should live apart. Her health and happiness required a separation, and the provision quoted was no more than a stipulation that there should not be a recurrence of the conduct which made separation necessary. There was an understanding, it is true, that a divorce would be obtained, and it is contended that to that extent at least it conflicts with public policy. An understanding that the separation, [691] which was inevitable and immediate and legal in itself, should thereafter receive the sanction of the court and effect a dissolution of the marriage relation, cannot be regarded as collusive or fraudulent or violative of public policy. Even if the stipulation and understanding referred to were treated as unlawful, Bartel, who had received the benefits of a contract, fully executed and carried out, would hardly be in a position to attack it, and those who claim under him occupy no better position. If one of the parties were seeking to enforce an agreement which was in fact illegal, the assertion of illegality would be a sufficient defense, but courts will not interfere to relieve either party from such an agreement when it has already been executed. Under the circumstances we think there was no collusion or fraudulent purpose in making the agreement, and that the action of the parties did not contravene public policy. The contract being valid and fully executed, John J. Bartel was effectually excluded from any interest in his wife’s estate. Such interest as he would have had but for the agreement was specifically relinquished, and no reason is seen why it is not effectual. (Hafer v. Hafer, supra ; Clendenning v. Wyatt, 54 Kan. 523, 38 Pac. 792, 33 L. R. A. 278.)
There is another contention that the rights of the heirs were not established because it was not expressly proved that the mother of Martha Bartel was not living. The case was tried on the theory that the line of descent was through the father of Martha Bartel, Charles Mollohan, and he died in 1890. Although it is not specifically shown that the mother of Martha Bartel was dead, the case proceeded on the theory that the defendants in error, her brothers and sisters, were the only heirs, unless John J. Bartel can be re[692] garded as an heir. That being true, the court found the defendants in error to be the only heirs, and the point made must therefore be overruled.
The final claim that the heirs are barred by the decision and judgment rendered before the first-review of the case in this court is not sound. The ruling on the demurrer was sustained, but the judgment on the pleadings was reversed and set aside. While the petition of the plaintiffs in error in that proceeding was upheld so far as the claim of King, Kelly and Carpenter under Hawley was concerned, the answer contained a general denial, and for that reason the demurrer was overruled. When the case was remanded it stood upon an issue of fact ready for trial. The first judgment was not a bar to a trial of the issues made by the pleadings as they then stood or as subsequently amended. An examination of the record satisfies us that the doctrine of res judicata is not applicable, and that the defendants in error were not estopped to claim and show the title alleged in the pleadings.
The judgment of the district court will be affirmed.
Doster, C. J., not sitting, having, been of counsel in the case.