Loveren v. Loveren

McFarland, J. This is an action for divorce brought by the wife against the husband. Judgment was rendered for plaintiff, and defendant appeals. The points made by appellant for reversal relate entirely to that part of the judgment which deals with the property of the parties; and the question to be determined is whether or not the court erred in disregarding a certain written instrument executed by the parties in which they undertook to provide for the division of their property and the custody of four children.

In the complaint the appellant is charged with extreme cruelty, desertion, habitual intemperance, and adultery. In his answer the appellant denied these charges, and, by a cross-complaint, recriminated with charges of adultery against respondent. During the pendency of the action, after issue joined, and before the trial thereof, viz., on August 13, 1892, the parties and their attorneys signed and delivered a written instrument or stipulation, by which they agreed upon the manner in which their property should be divided, the main feature of which was that the property should he appraised by three appraisers, and that appellant should pay one-third of the appraised value to respondent, and she should make conveyances to him of all her interest in the property. Afterwards respondent became dissatisfied with this instrument, and, on October 1, 1892— before any of the issues in the case had been tried—she filed a petition asking the court to set aside and disregard said instrument. This petition was based upon alleged misconduct of the appraisers. On October 13th appellant filed an answer to the petition denying its averments, and, on that day, the matter coming on to be heard, the court inquired if the instrument was founded [511]upon any understanding as to the divorce; whereupon respondent’s counsel, in open court, fully informed the court of the circumstances under which said instrument was executed (as hereinafter mentioned), and the court continued the matter until November 12th, on which day the court, of its own motion, continued the hearing until after the trial of certain issues touching the alleged grounds for a divorce which were to be submitted to a jury. On December 27, 1892, the trial of those issues commenced and was prosecuted continuously until January 10, 1893. All the issues made by the pleadings as to causes for divorce were vigorously contested by both parties; and the jury found in favor of respondent upon all her said charges against appellant, and also found in her favor upon the charge of adultery made against her by appellant. The questions as to the property rights of the parties and the custody of their children were reserved, and were afterwards, on March 24,1894, taken up for adjudication. Evidence as to the circumstances under which said written instrument of August 13th was executed was introduced by both parties. From this evidence the court found that on said August 13th the attorneys for the parties executed another written instrument, which was “ part of the same transaction and agreement hereinbefore set forth ”—that is, part of the said instrument providing for the division of the property. In this second instrument it was stipulated that “the defendant will destroy, in the presence of the plaintiff, all letters and photographs of letters written by her, or by any person addressed to her, upon the plaintiff’s executing deeds and bills of sale of property as provided for in a certain stipulation signed by said parties on this date.” The court further found that at the time of the execution of said two instruments it was agreed by and between the parties to the action, as a part consideration therefor, that they were “to entirely settle the whole cause and causes of action set forth in the complaint and cross-complaint herein; that defendant would withdraw his defense and his allegations against plaintiff;