McClure v. McClure
Before: Vanclief
Synopsis
Contract—Consideration—Compromise op Litigation—Husband and Wipe.—A compromise agreement between a husband and wife by which they both agree to dismiss pending litigation between them is a sufficient consideration for a note and mortgage given to the wife by the husband, where the agreement remains unrescinded, and there is no pretense of fraud or imposition or that the compromise suits were not brought and defended bona fide.
Id.—Compromise op Litigation Favored—Family Settlements.—A promise to compromise a suit brought bona fide on probable cause is a valid consideration for a contract, even though the suit should be held to be unfounded. Not only will such agreements be sustained, in the absence of fraud, but they are highly favored as productive of peace and goodwill in the community, and reducing the expense and persist-ency of litigation, and this is especially so of family settlements, where the courts will not undertake to weigh actual loss or gain, unless there be an imposition.
Vanclief, C. Action to foreclose a mortgage executed by defendant to secure his promissory note for two thousand dollars made to his wife, Mrs. M. E. McClure, and by her assigned to the plaintiff, who is the son of defendant and his said wife.
The only defense upon which any point made here is that there was no consideration for the note or mortgage.
The judgment was in favor of the plaintiff, and defendant appeals from the judgment and from an order denying his motion for a new trial.
It is contended by counsel for appellant that the evidence does not justify the finding by the court, that [340]there was “a valuable- and adequate consideration” for the execution of the note and mortgage.
The making of the note and mortgage was one of the results of a compromise of pending lawsuits between defendant and his wife.
On April 5, 1887, defendant and wife with minor children were residing on the mortgaged premises, which were then community property of the husband and wife, but had not been selected or recorded as a homestead by either. On that day, on account of some difference between them, the defendant angrily ordered his wife to leave their home. Thereupon they divided their household furniture and provisions of food, and she left her house and went to a house which she leased about a mile from the mortgaged premises, saying then, and often afterwards, that she intended never to return to or to live with her husband; and she never did. About three weeks after thus leaving, she made and filed her declaration of homestead on the mortgaged premises containing among other things the following: “I do now, at the time of making this declaration, actually reside with my husband and family on the land, but am temporarily abiding off said land and premises.”
On October 15, 1887, the defendant commenced an action against his wife to quiet his title against her claim of homestead, and to annul her recorded declaration thereof, as a cloud upon his title, on the ground that she was not residing on the land at the time said declaration was made and recorded.
On July 3,1888, the defendant commenced another action against his wife for a divorce, on the alleged ground of her willful desertion. To this complaint she answered, denying that she had willfully deserted, etc., and also filed a cross-complaint praying for a divorce from her husband, but upon what ground does not appear.
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