Lippy v. Masonheimer

Eccleston, J., delivered the opinion of this court. The motion to dismiss must be overruled upon the authority of Oliver vs. Palmer & Hamilton, 11 Gill & Johns., 137. There appeals had been taken from the original decree, and from the order of the court dismissing the petition which asked to have the enrollment of the decree opened. And motions were made to dismiss both appeals.

On page 141, it will be seen, the counsel for the appellees there insist: “That inasmuch as the appellants were in default, in failing to appear and answer, and the said decree was obtained in virtue of the provisions of the act of 1820, chapter 161, the defendants have no right to seek a reversal thereof, by appeal in the mode now attempted.” The court however overruled both motions. In the case before us the motion to dismiss takes the ground that the defendant has no right of appeal, “because he did not file an answer in the court below, and an interlocutory decree was passed under the act of 1820, ch. 161, in pursuance of which the cause was conducted to final decree.” If it was proper to overrule both motions in the case referred to, it is difficult to perceive why the present motion should not share the same fate. On the 1st of September 183T, in consequence of various unhappy differences between George Lippy and his wife, ³¹⁶ Barbara, they entered into a written agreement under seal, in which they agreed to live separately and apart from each other during the remainder of their lives : the husband agreeing to allow the wife “for her maintenance and support, and for her property, in as full and ample a manner as if she were a feme sole, forever,” certain real estate which had been devised to her by her father, and also four hundred dollars worth of certain kinds of personal property; and the wife agreeing to relinquish all right, title and interest in the estate of the husband whether she survived him or not. This instrument was not acknowledged hy either party nor was it recorded.

It is therefore merely an agreement between husband and wife for a separation, there being no trustees, no indemnity to the husband against the debts of the wife by any third person, and no consideration passing to the husband, through the instrumentality of any separate property of the wife. Whether such a contract has any validity, even in a court of equity, is a question which has been much discussed, as will appear from the conflicting views of