Opinion
18230.
ARGUED MAY 13, 1953.
DECIDED JUNE 9, 1953. REHEARING DENIED JULY 15, 1953.
Cancellation. Before Judge Smith. Lanier Superior Court. April 8, 1953.
C. Bradford and Franklin, Eberhardt Barham, for plaintiff in error.
Edward Parrish, McCall Griffis and R. R. Forrester, contra.
1. While the judgment of a court of competent jurisdiction may be set aside by a decree, for fraud, or the acts of the adverse party unmixed with the negligence or fault of the petitioner (Code, §§ 37-219, 37-709), and while marriage and divorce are matters in which the public is concerned, and the public policy of this State is to foster and protect marriage, and forbids that a divorce shall be granted if there be evidence of collusive consent ( Watts v. Watts, 130 Ga. 683, 61 S.E. 593; Jones v. Jones, 181 Ga. 747 (2), 184 S.E. 271; Shelton v. Shelton, 209 Ga. 454, 74 S.E.2d 5), where as here, the main relief sought by the plaintiff is the cancellation of certain conveyances and transfers and the recovery of real and personal property conveyed by him in pursuance of an agreement by which he obtained a divorce by collusion, he must come into a court of equity with clean hands, and is estopped to attack the validity of the decree thus self-induced. Axtell v. Axtell, 183 Ga. 195, 197 ( 187 S.E. 877); 27 C. J. S. 815, § 171 (b). See also McConnell v. McConnell, 135 Ga. 828 ( 70 S.E. 647); Fuller v. Curry, 162 Ga. 293 ( 133 S.E. 244); McLeod v. McLeod, 144 Ga. 359 ( 87 S.E. 286); Don v. Don, 158 Ga. 254 ( 123 S.E. 268); Crenshaw v. Crenshaw, 198 Ga. 536 (2b) ( 32 S.E.2d 177). One will not be permitted to invoke the public policy of the State to relieve him from the consequences of his collusive agreement to circumvent that public policy. What is here ruled is not in conflict with the decision in Christopher v. Christopher, 198 Ga. 361 ( 31 S.E.2d 818). That case is distinguishable from this in that the person there attacking the divorce was not the party plaintiff in the proceeding in which and the person to whom the divorce attacked was granted.
2. Since it appears from the allegations of the plaintiff's petition that the conveyances of real estate and transfer of personal property sought to be set aside were made by him in pursuance of a collusive agreement to procure a divorce, contrary to public policy, and to which he was a party, a court of equity will not grant to him the relief sought. A court of equity will not lend its aid to a party to a contract founded upon an illegal or immoral consideration. "If the contract is executed, it will be left to stand; if it be executory, neither party can enforce it." Watkins v. Nugen, 118 Ga. 372, 373 ( 45 S.E. 262); Smith v. Nix, 206 Ga. 403 (2), 407 ( 57 S.E.2d 275).
3. It was not error to sustain the general demurrer and dismiss the petition.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.
No. 18230. ARGUED MAY 13, 1953 — DECIDED JUNE 9, 1953 — REHEARING DENIED JULY 15, 1953.
On January 23, 1953, George Fender filed in Lanier Superior Court his equitable petition alleging substantially: That he and his former wife, who is now Mrs. Maud Crosby and is one of the defendants, lived together happily from the time they were married in 1931 until on or about July 26, 1952, although her affection toward him had been noticeably diminishing increasingly for several months prior thereto; that there was born to them one daughter, who had reached the approximate age of 20 years. On or about July 26, 1952, plaintiff's wife approached him and falsely reported to him that she was in poor physical condition, that she was very nervous and upset all the time, that, on account of such physical condition she needed rest, quietude, and relaxation, and, to that end, she wished to be relieved of all responsibilities of keeping and maintaining a home for the plaintiff, that she wanted to live by herself so that she might overcome such physical condition and regain her health, that, when she did regain her health, she hoped that she and the plaintiff could thereafter live together as husband and wife, but that, under the conditions then existing, there was nothing for them to do except to live separate and apart, and to carry out and accomplish this objective they should get a divorce from each other and divide his property between them, and that, if he would not agree to a separation, to a division of his property with her, and to a divorce, she would destroy herself or would leave and never be heard from again. He inquired of her whether any other man had come between them, and she assured him that there was no other man involved, and that, if she could live with any man, she could live with him.
The petition further alleges: that the plaintiff, being a faithful, affectionate, loving, and trusting husband, believed her statements, and at her insistence he finally agreed on a division of his property with her, and afterwards, on August 1, 1952, in her presence and pursuant to her insistence, and relying upon her statements and representations to him, he employed counsel to prepare a suit in his name against her for divorce, and also an agreement that both of them be granted a divorce, and at this time he executed to her a deed conveying his home to her, another deed conveying to her other real estate, and a few days later he transferred and turned over to her his family car and nearly $1500, all of which was "done for the sole and only purpose of dividing his property with her in the promotion of the separation of petitioner and her and the obtainment of a divorce between them," and which had been agreed on between petitioner and her before going to the office of said counsel; that the suit for divorce was filed in Lanier Superior Court on August 5, 1952, and on August 25, 1952, a final decree of divorce was granted; that, during the term from July 26, 1952, and until the expiration of the thirty-day period from August 25, 1952, she lulled him into a sense of security and inaction. A few days after the expiration of the thirty-day period, she married her codefendant and coconspirator, Leon Crosby, whereupon petitioner made inquiry and discovered for the first time the falsity of the representations his wife had previously made, and ascertained the true cause of his trouble with his wife and the conspiracy between her and her lover to bring about the separation, to obtain a dissolution of the marriage, and to wring from him all of the property they could, and he had been used as a tool or instrument of fraud to accomplish the nefarious purposes of the two coconspirators.
By his petition the plaintiff seeks a recovery of the property which had been transferred to his wife, or its value; to set aside the deeds to her; to cancel the deed made by his wife to her present husband, the other defendant, conveying to him the home place; to have a receiver appointed to take possession of the home place and other described property in which that transferred to his wife had been invested; for injunction to preserve the status of the property until final decree; and for general relief, and by an amendment to the petition, a prayer to set aside the decree of divorce.
To this petition the defendants demurred, and to the judgment sustaining the demurrer and dismissing the petition the plaintiff excepts.