Lanktree v. Lanktree

BRITTAIN, J.

The plaintiff appeals from a judgment entered upon an order sustaining, without leave to amend, a general demurrer to her complaint.

For the purposes of this decision, the facts alleged in the complaint are binding upon both parties and the court. The question is not one of fact, hut of law. If the plaintiff’s allegations are true, is she entitled to relief ? At the instance of a wife who alleges she has procured a collusive decree of

[650]

divorce, will a court of equity set it aside because she also alleges in substance that she bartered her marital rights for a smaller sum than she might have exacted if the other party to the collusive agreement had not misrepresented the amount of his property f

In the briefs authorities are not cited nor is there any serious argument upon the legal effect of the plaintiff’s allegations in regard to her having procured the collusive decree. The argument on one side is upon the policy of the law to uphold the marital relation; on the other, upon the principle that to warrant a court of equity to set aside a former judgment, extrinsic fraud must be shown. The determination of the larger question concerning the fraud which the plaintiff avers she practiced upon the court renders unnecessary lengthy consideration of the other matters argued in the briefs.

[1]

The plaintiff alleged that the parties were married in 1881 and continued to live together as man and wife for thirty-six years; that early in 1917 the husband requested his wife to enter into an agreement with him for the settlement of their property rights and for the wife to institute a divorce suit which he should refrain from contesting; and that the plaintiff refused to consent to this agreement. Such an agreement is contrary to public policy.

[2]

When collusion appears the divorce must be denied. (Civ. Code, sec. 111, subd. 2; Civ. Code, sec. 114;

Deyoe

v.

Superior Court,