Burnett v. Paine

Divorce. Alimony — adjustment of, hy the parties, permitted. Notes of hand given by a libellee to a libellant, during the pendency of proceedings for divorce, in settlement of the claim for alimony, deposited before, to be delivered after a decree of divorce, should one be granted, are valid, if there be no collusion to procure the divorce.

On exceptions. Assumpsit on five notes dated January 17, 1871, given by the defendant to Margaret Paine, formerly his wife, the plaintiff's intestate. In November, 1870, she libelled her husband for divorce on the ground of cruelty and entered her libel at the January term, 1871, of this court for this county. Upon the twelfth day of the return term, which was January 21, 1871, the defendant was defaulted and the decree of divorce granted as prayed for in the libel. These notes were executed on the day of their date, at the office of the libellants’ attorney; at the same time and place, and as part of the same transaction, she joined her husband in a deed of his real estate to a third person, in order to release her dower; the deed and notes were all left in the hands of her attorney, only to be ^delivered in case a divorce was obtained; otherwise, both to be cancelled. The attorney testified: “I understood this arrangement to be in contemplation of a divorce, and that the defendant was not to appear in court to oppose such decree. The deed and notes were given to settle property questions. I do not know that the notes were given in consideration that he should not appear to defend, though I understood he was not to appear.” After the decree was entered the notes were delivered to the payee and the deed'to the grantee, who immediately re-conveyed to the defendant in accordance with the original agreement of the parties. The presiding judge ruled that, upon this evidence, the plaintiff was entitled to judgment, and the defendant excepted. B. S., e. 60, § 18, says where there is collusion no divorce shall be granted. Section Y of that chapter provides for the wife divorced for her husband’s fault. Would the defendant voluntarily have allowed the deceased more than she could have obtained under § Y, except for the purpose of inducing her to procure a divorce ? Would she voluntarily have taken less, if she did not fear his opposition ? If she was to have neither more nor less, nothing was gained by the arrangement, and it was objectless, unless made to induce consent to a groundless divorce.