Beard v. Beard

Sharpstein, J. —It appears by the findings that the plaintiff herein transferred real and personal property to the defendant, in consideration of her executing to him four notes, and securing the payment of the same by a mortgage, and abandoning her defense in an action of divorce then pending between them, and doing nothing to resist, or prevent, or delay him in obtaining a decree of divorce therein. He seeks in this action to recover the amount so secured. The defense is that the notes and mortgage are so tainted by fraud that a court ought not to enforce them. The agreement between the parties in the divorce proceeding was clearly collusive—“a secret agreement and co-operation for a fraudulent purpose.” The decree obtained in pursuance of it was obtained through fraud on the court. If the court had been advised of that agreement it would not have granted the divorce. In Barnes v. Barnes, Law R. 1 Pro. & D. 505, a decree nisi had been rendered, when it was made to appear to the court that the petitioner had in substance said to his wife, the respondent: “ If you don’t oppose, I shall get a divorce cheaper than if you do j [355]therefore, keep quiet, and I will give you some money when the decree is obtained, and I will do no harm to the co-respondent.” The decree was rescinded and the petition dismissed, Cresswell, J., remarking: “ If that is not collusion, I do not know what is.” It would not be “collusion” within the definition of that term in our Code. (Civ. Code, § 114.) But it would be none the less a fraud on the court, and in contravention of the policy of the law. The law-making power, for reasons which it is unnecessary here to state, has made a distinction between divorce and other cases, by declaring that, “ no divorce can be granted upon the default of the defendant,” etc. (Civ. Code, § 130.) Our reason for referring to this provision is not because we have any ground for doubting that the court complied fully and strictly with the law, but because the intention of the legislature to prevent the obtaining of divorces in the way the plaintiff obtained his, is clearly manifested. If a divorce could not be granted upon the default of the defendant, or upon the uncorroborated statement, admission, or testimony of the parties, could it be granted in a case in which the defendant, for a consideration, had stipulated not to make any opposition to the granting of it? Clearly not. And the objection is not obviated by the suggestion, that for anything which appears the defendant may have had no defense to the action in which the divorce was obtained. It appears that she filed an answer denying the allegations "which constituted any ground for a divorce, and that she abanboned her defense.