(87 Conn. 377) MAISCH v. MAISCH. fendant answered denying that anything was due under the contract, and in a second de (Supreme Court of Errors of Connecticut. July fense again setting up that the contract was 25, 1913.) courts. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 515-520; Dec. Dig. § 111.*] 2. CONTRACTS (§ 346*)-ISSUES AND PROOF CONTRACTS AS TO ALIMONY. Evidence in an action on the contract made by the parties pending plaintiff's action for divorce, agreeing on the alimony to be paid in case divorce was decreed, that, while prior to the divorce action the parties had entered into articles of separation, plaintiff in the divorce action testified defendant had deserted her is inadmissible under a defense merely alleging that the contract was against public policy, and not alleging the divorce was in fact collusive or fraudulent. against public policy and void. It is not pleaded that the divorce proceedings were in fact collusive or fraudulent. Nichols C. Downs and Daniel F. B. Hickey, both of Stamford, for appellant. Leonard M. Daggett, of New Haven, for appellee. BEACH, J. (after stating the facts as above). [1] The principal question is whether the contract sued on is on its face, and without a showing that it was in fact intended or used for collusion or suppression of evidence, so contrary to the public policy of Connecticut that it cannot support the judgIt is everywhere agreed that conment. tracts for the purpose of facilitating divorce are contrary to public policy, as where the agreement is to assist each other in obtaining the divorce. Palmer v. Palmer, 26 Utah, 31, 72 Pac. 3, 61 L. R. A. 641, 99 Am. St. Rep. 820. Or for the nonappearance of one of the parties, as in Belden v. Munger, 5 [Ed. Note. For other cases, see Contracts, Cent. Dig. 88 1714, 1718-1751; Dec. Dig. Minn. 211 (Gil. 169), 80 Am. Dec. 407; Ad346.*] Wheeler, J., dissenting. Appeal from Superior Court, New Haven County; Edwin B. Gager and William H. Williams, Judges. Action by Lillie A. Maisch against Charles O. Maisch for breach of contract to pay certain moneys in lieu of alimony. From a judgment for plaintiff, defendant appeals. Affirmed. ams v. Adams, 25 Minn. 72. Or where money is paid in consideration of the agreement of the wife to prosecute and sue for divorce, as in Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028. But there is a difference of opinion as to the validity of contracts made after divorce proceedings have been independently commenced or determined upon and where the agreement is in fact an amicable arrangement as to the amount of alimony to be paid in the event of a divorce being granted. The plaintiff and her then husband, the In some jurisdictions contracts of this generdefendant, while resident in South Dakota, al character are permitted and even favored. there entered into a contract reciting that Burnett v. Paine, 62 Me. 122; Badger v. the plaintiff had commenced an action for di- Hatch, 71 Me. 562; Snow v. Gould, 74 Me. vorce in a South Dakota court; that the de- 540, 43 Am. Rep. 604; Warren v. Warren, fendant had appeared and answered; that it 116 Minn. 458, 133 N. W. 1009; Randall v. was desirable to settle their property affairs | Randall, 37 Mich. 565; Palmer v. Fagerlin, and rights independently of the divorce pro- 163 Mich. 345, 128 N. W. 207; Pryor v. Pryceedings, and to agree upon the amounts to or, 88 Ark. 302, 114 S. W. 700, 129 Am. St. be allowed the plaintiff as attorney's fees, Rep. 102. In other jurisdictions such concosts, and alimony rather than to submit tracts are held to be contrary to public polithese matters to the court for adjudication, cy. Lake v. Lake, 136 App. Div. 47, 119 N. leaving to the court the question only of Y. Supp. 686; Speck v. Dausman, 7 Mo. App. whether the plaintiff was entitled to an ab- 165; Muckenburg v. Holler, 29 Ind. 139, 92 solute divorce. The contract then provided | Am. Dec. 345; Hamilton v. Hamilton, 89 III. for the payment of agreed allowances and 349; Seeley's Appeal, 56 Conn, 202, 14 Atl. costs and of $20 a week, in the event of a decree of divorce being granted, during the defendant's life and until the death or marriage of the plaintiff. After the execution of the contract and on the same day a decree of absolute divorce was granted to the plaintiff. Plaintiff has not remarried and brings this action to recover damages for the defendant's neglect and refusal to make the payments required by the agreement. A demurrer to the complaint on the ground that the contract was against public policy and void was overruled (Gager, J.), and the de 291. According to the law of South Dakota, the contract in suit appears to be valid. By that law husband and wife may contract with each other respecting property, and they may agree in writing to an immediate separation. Code, §§ 98 and 99. In Burgess v. Burgess, 17 S. D. 44, 95 N. W. 279, a woman, after divorce, sued her former husband for specific performance of a contract to convey real property, made in contemplation of the divorce proceedings, in lieu of alimony. The court said: "The law of this state expressly 696. No unyielding principle can be invoked, but each case must be determined as a matter of comparative justice. In the present case the contract has been fully performed by the plaintiff; in reliance on the defendant's express agreement, valid where made, she has omitted to demand alimony from the court and has now lost her opportunity of doing so; there is no showing that the contract was actually made for the purpose of collusion or suppression of evidence, and no claim that the decree is for any reason invalid, so that nothing remains unperformed except a financial obligation which the defendant seeks to evade. The public policy of Connecticut is not invoked to prevent the doing or continuance of any act forbidden by our law, but as a token of our disapproval of a past transaction in South Dakota between residents of that state which was unobjectionable under their law. A disapproval, moreover, founded on a general objection to the making of such contracts and not upon any special objection to this particular transaction. permits contracts between husband and wife | bert v. Baker, 58 Conn. 319, 20 Atl. 466; First with respect to the property of each, but for- Nat. Bank v. Walker, 61 Conn. 154, 23 Atl. bids certain agreements as collusive which are intended to alter or promote the dissolution of the relation of husband and wife. Contracts relating to alimony are being constantly made and enforced, while agreements which contravene the policy of the law in relation to granting divorces are everywhere regarded as illegal. * The plaintiff was not asked to commit, or to appear to have committed, or to be represented in court as having committed, any act constituting a cause for divorce. She was not asked to refrain from appearing in the contemplated action for divorce, nor does it appear that she ever agreed to refrain from making a defense. It is true that she did not appear, relying * * * on the defendant's express promise, and was thus deprived of an opportunity to have her property rights and the property rights of her daughter determined by the court. But it does not affirmatively appear, and we think it cannot be inferred, that she made any agreement as the consideration of receiving the land, which, if shown, would have required the court to deny her husband a divorce on the ground of collusion." Such being the law of South Dakota, the contract was valid at the time and place when it was made and gave rise to an enforceable obligation. That being so, the obligation is enforceable here, unless its enforcement would contravene some important public policy of the state or the canons of morality established by civilized society. Minor on Conflict Law, p. 9. We think it clear that the state of Connecticut is not deeply concerned as a matter of public policy in reprehending this contract. The right of each state to determine as a matter of public policy the conditions upon which the marital relations of its citizens may be dissolved is fully recognized; and it would seem that the same policy ought to control the validity of contracts made in view of pending divorce proceedings. It is no part That the contract was not contrary to any of the public policy of Connecticut to be more universally accepted code of morals is evident careful than the state of Dakota itself in from the difference of opinion above pointed protecting the divorce courts of Dakota out. In determining whether foreign created against collusion. We have assumed that the rights, valid at the place of their origin, will policy of the state of Connecticut is opposed or will not be enforced in another jurisdic- to contracts between husband and wife made tion when contrary to some domestic public after divorce proceedings have been instituted policy of the forum the courts are compelled, and with a view of fixing by mutual agreein the absence of statutory direction, to weigh ment the amounts to be paid by the husband the injustice of refusing the remedy against in lieu of alimony. It may be doubted perthe importance of maintaining the domestic haps whether the case of Seeley's Appeal, policy. "In deciding cases of this kind, there- 56 Conn. 202, 14 Atl. 291, goes quite to this fore, each court has to pass upon the im-length, for that decision is complicated by the portance of the domestic policy maintained by its laws. They are generally loath to deny the enforcement of a proper foreign law and will not, if they consider the domestic of minor importance. But, where it is a fundamental and important policy of a state established after careful consideration of the supposed needs and wants of its people no foreign law will be permitted to supersede it." Minor on Conflict of Laws, p. 11. "Not every common law or statutory rule prevailing at the forum involves a distinctive policy in the sense of the exception." Wharton on the Conflict of Laws, § 4a; Medway v. Needham, 16 Mass. 157, 8 Am. Dec. 131; Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241; Mc Such fact that the wife was at the time of the contract legally incapable of contracting with her husband. It is also pointed out in Seeley's Appeal that the contract in that case was objectionable because the court was left to rest a decree upon evidence which did not include all the facts in the case. This objection goes to the root of the matter. contracts when made not to facilitate divorce, but solely as an amicable settlement of property affairs, and made in view of divorce proceedings already independently instituted or determined upon, are not necessarily contrary to public policy and void, unless concealed from the court. If submitted to and approved by the court with full opportunity sentative. jectionable; but, if concealed from the court, | vendee or their personal representative, a rethey are contrary to public policy and will ceiver of the vendee is not its personal reprenot be enforced unless in extreme cases where the refusal to do so would assist in the perpetration of an intentional fraud. Dig. §§ 1366-1376; 3. SALES (§ 472*)-CONDITIONAL SALES-RE CORDING. Under Gen. St. 1902, § 4864, requiring conditional contracts of sale to be acknowledged and recorded within a reasonable time, an acknowledgment and recording of such a contract more than a year after delivery of the goods and after the vendee had acquired new obligations made within a reasonable time. to other creditors was, as a matter of law, not [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1366-1376; Dec. Dig. § 472.*] 4. RECEIVERS (§ 70*)-TITLE TO PROPERTY— TIME OF VESTING. A receiver's right to the possession of the property of the party of which he is receiver from the commencement of the action in which dates from his appointment as such and not he is appointed. [Ed. Note.-For other cases, see Receivers, Cent. Dig. § 126; Dec. Dig. § 70.*] 5. SALES (8 479*)-CONDITIONAL SALES-RECOVERY OF POSSESSION-PLEADING. [2] On the trial of the action the defendant introduced in evidence articles of separation made in New York between the plaintiff and the defendant in July, 1902, expressing the fact that the plaintiff and the defendant had agreed to live separate and apart. The defendant then offered in evidence a certified copy of all the proceedings in the South Dakota divorce suit for the purpose of showing that the plaintiff had testified before the South Dakota court in such proceedings that she had been deserted by the defendant. The evidence was claimed in support of the allegations of the second defense. The defendant also called the plaintiff as a witness and inquired whether she had testified in the divorce suit in South Dakota that her husband had deserted her and whether his living apart had been contrary to her wish and desire. All this evidence was objected to and exclud-premises the property claimed to be replevied ed on the ground that the second defense contained no allegation of fact, and that the evidence was not relevant to any issue in the cause. Upon an examination of the plead ings, we think the evidence was properly ex cluded. There is no error. The other Judges concurred except WHEELER J., who dissented. (87 Conn. 369) AMERICAN CLAY MACHINERY CO. v. contract authorized it upon default to retake In replevin by a conditional vendor, whose possession of the property, but whose contract was not acknowledged and recorded as required by statute, a receiver of the vendee, appointed after the attempted service of the writ of replevin, answered in the name of the vendee, alleging the failure to acknowledge the contract, the contracting of obligations by the vendee to that the officer did not remove from the vendee's other creditors, the appointment of receiver, or so segregate them from the other goods of the vendee that he could identify them, and that at writ the vendee was the owner and entitled to the time of the pretended service of the replevin the possession of the property sought to be replevied. Plaintiff in its reply, after denying the allegations of the answer, alleged that the officer entered upon the premises of defendant, took possession of the property, and remained in possession thereof, placing two keepers in possession on defendant's premises with defendant's consent, who remained continuously in possession until by stipulation the property was surrendered to the receiver without prejudice to the rights of either party. Held, that a demurrer to these allegations of the reply was im (Supreme Court of Errors of Connecticut. July properly sustained, since while they were un 25, 1913.) 1. SALES (§ 472*)-CONDITIONAL SALES-Ac- [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1366-1376; Dec. Dig. § 472.*] necessary if plaintiff had based its claim to the property solely on the legality of the service of the writ, the receiver having set up his appointment subsequent to the date of the writ, plaintiff in reply might properly show that, even though the replevin writ was improperly served, it had taken possession of the property as its contract permitted it to do prior to the receiver's appointment. [Ed. Note. For other cases, see Sales, Cent. Dig. 88 1418-1432, 1434-1438; Dec. Dig. 8 479.*] 6. SALES (8 472*) - CONDITIONAL SALES RIGHTS OF THIRD PERSONS-EFFECT OF RE- The provisions of Gen. St. 1902, § 4864, requiring conditional contracts of sale to be ac 2. SALES (§ 472*)-CONDITIONAL SALES-OP-knowledged and recorded, and section 4865, ERATION AND EFFECT OF CONDITION AS TO THIRD PERSONS. Under Gen. St. 1902, § 4865, providing that conditional sales, when not made in conformity to section 4864, which requires such contracts to be acknowledged and recorded, shall be held to be absolute except between the vendor and providing that such sales not made in conformity to section 4864 shall be held to be absolute except between the vendor and vendee or their personal representatives, estop the vendor, who has failed to comply with the statute, from claiming title as against a bona fide purchaser, or attaching creditors or others who have ac quired some lien or other beneficial interest in |nent receiver, a stipulation was entered into the property through the vendee while the prop- between him and the plaintiff, which was erty was in his possession; but does not give creditors, who have acquired no such beneficial approved by the superior court, whereby interest until after the vendor has resumed pos- the machinery here in question was surrensession of the property, any right to contest the dered to the receiver, without prejudice to vendor's title. the rights or claims of either party. These facts all appear as admitted facts in the [Ed. Note.-For other cases, see Sales, Cent. Dig. $ 1366-1376; Dec. Dig. § 472.*] Appeal from Superior Court, Hartford County; Marcus H. Holcomb, Judge. Action by the American Clay Machinery Company against the New England Brick Company to replevy machinery sold by the plaintiff to the defendant on a conditional contract. A demurrer to three paragraphs of the reply to the second defense was sustained by the court, after which the judge found the issues for the defendant and rendered judgment in its favor. The plaintiff appeals, assigning as error the court's ruling upon the demurrer. Reversed. E. Henry Hyde, of Hartford, for appellant. Samuel A. Herman and William H. Blodgett, both of Winsted, for appellee. pleadings. or so segregate them from the other goods of the defendant that he could identify them; and that at the time of the pretended service of the replevin writ the defendant was the owner and entitled to the possession of the goods sought to be replevied. The receiver, without being made a party to this action, appeared and filed an answer in the name of the defendant, containing two defenses, the first of which was a general denial. The second defense was in substance that the conditional contract was not acknowledged; that after the goods were sold under it the defendant became indebted to creditors other than the plaintiff and had not sufficient cash assets with which to pay them, which was known to the plaintiff ; that proceedings for the appointment of a receiver were pending when the suit was brought, and this was known to the plaintiff; that the receiver was appointed as above stated; that the plaintiff before bringing the action did not pay or tender to the THAYER, J. It appears from the record defendant the amount which had been paid that the plaintiff, who manufactures brickon account of the machinery; that the ofmaking machinery, sold to the defendant inficer did not remove from the defendant's March, 1911, by a conditional contract $26,-premises the goods claimed to be replevied 000 worth of machinery, the title to which by the terms of the contract was not to pass until the machinery was fully paid for, and, if the payments were not made as agreed, the plaintiff at its option might enter upon the defendant's premises and take possession of and remove the machinery. The delivery of the goods began in March and ended in August, 1911. The contract of sale was in writing, but was not acknowledged as the statute requires before it was recorded. It was recorded in Hartford, where the defendant resides, on July 17, 1911. A few days previous to the bringing of the action, the plaintiff acknowledged the conditional contract and caused the same to be again recorded in the office of the town clerk of Hartford. The defendant failed to fulfill the conditions of the contract, and on the 23d day of September, 1912, this action was brought. The officer's return shows that on the same day he replevied to the plaintiff the machinery which is described in the writ, and on the following day served a copy of the writ and complaint with his doings indorsed thereon upon the defendant. In an action begun on the 19th of September, 1912, a temporary receiver was appointed; on the 30th of September the appointment was confirmed; on October 7th, and later on October 11, 1912, the temporary receiver was made permanent receiver. It thus appears that when this action was brought there was pending an action for the appointment of a receiver of the defendant, but that no re- The second defense was designed to raise ceiver had been appointed. On October 11th, the question whether, the title to the goods the date of the appointment of the perma- in question being in the plaintiff as against The plaintiff in its reply, after admitting or denying each of the allegations of the second defense, added the five paragraphs which were demurred to. The eleventh, twelfth and thirteenth allege that the officer serving the writ of replevin entered upon the premises of the defendant and took rossession of the machinery described in the writ and remained in possession of it until October 11, 1912, by placing two keepers in possession of it on the defendant's premises with the latter's consent and knowledge, the keepers remaining continuously in possession, one during the day and the other during the night; that the machinery was heavy and could not be removed without great difficulty and expense, and that such removal would occupy from four to six weeks; that on the 11th of October, 1912, with the approval of the court, the stipulation and surrender above referred to were made for the purpose of avoiding expense and without prejudice to either party. The fourteenth and fifteenth paragraphs set up the acknowledgment and re-recording of the conditional contract and the amount of the balance due to the plaintiff from the defendant for the machinery. the defendant under the contract, it could | officer who served the replevin writ did not upon the facts alleged enforce its title segregate this property from the other propagainst the receiver as the representative of erty of the defendant, it was unnecessary the defendant's creditors. The receiver for the plaintiff to set up, as it did in the claimed that the plaintiff's title was not good paragraphs demurred to, the action of the as against him; that his title related back officer in serving the writ and the reasons to the commencement of the action in which for such action had its claim to the property he was appointed and thus antedated the been based solely upon the legality of the writ of replevin; and that, if it did not, the service of the writ. In such case it might plaintiff did not get possession of the goods in this action, defended in the name of the under its writ of replevin, and the defend- defendant, rely upon the officer's return that ant remained in possession of them until the he duly served the writ by replevying the appointment of the receiver was made, so property to the plaintiff and leaving a copy that the latter's title to the machinery, by of the writ with his doings indorsed thereon virtue of the statute, was in either case ab- with the defendant. But the receiver was solute. setting up his appointment subsequent to the date of the writ, and the plaintiff in reply might show that, if the replevin writ was improperly served, it took possession of the property, as its contract permitted it to do, after breach of the conditions of sale and prior to the receiver's appointment. If having title under the terms of the contract the plaintiff had by replevin or by itself or its agent resumed possession of the property, his title would be good against a receiver afterwards appointed or any person who had not by deed, attachment, or other means acquired some title or lien upon the property. High on Receivers, 38, and cases there cited. [1-3] General Statutes, 4864, provides that conditional, contracts of sale shall be acknowledged and recorded within a reasonable time in the town clerk's office, and section 4865 provides that such sales not made in conformity to the provisions of section 4864 shall be held to be absolute except between the vendor and vendee or their personal representatives. The contract in this case was not acknowledged when it was first recorded and so was to be held an absolute sale except as between the plaintiff and the defendant or their personal representatives. And the receiver was not such personal representative. In re Wilcox & Howe Co., 70 Conn. 220, 234, 39 Atl. 163. The acknowledgment and re-recording of the contract took place a few days only before the action of replevin was begun, more than a year after all the goods had been delivered and after the defendant had acquired new obligations to creditors other than the plaintiff. Under these circumstances, as matter of law, the second recording of the contract, was not made within a reasonable time as required by the statute. Camp v. Thatcher Co., 75 Conn. 165, 169, 52 Atl. 953. The demurrer to the fourteenth paragraph of the reply, which set up the acknowledgment and re-recording of the contract, was properly sustained. [4] The receiver's right to the possession of the defendant's property dates from his appointment as receiver and not from the commencement of the action in which he was appointed. High on Receivers, §§ 136, 138; Baldwin v. Spear, 79 Vt. 43, 50, 64 Atl. 235; Van Alstyne v. Cook, 25 N. Y. 489, 496; Smith v. Sioux City Nursery & Seed Co., 109 Iowa, 51, 79 N. W. 457, 458; Illinois Steel Co. v. Putnam, 68 Fed. 515, 517, 15 C. C. A. 556. [5] If at the time of his appointment the defendant was the owner of the property in question and entitled to its immediate possession, as the second defense alleges, the receiver was entitled to its possession as soon as he was appointed. The plaintiff, by paragraphs of the reply which were not demurred to, denied these allegations and thus put in issue the facts there alleged. Having [6] The provision that conditional sales, not made in accordance with General Statutes, § 4864, shall be deemed absolute sales except as between vendor and vendee estops the vendor from claiming title to the subject of such sale against a bona fide purchaser or attaching creditor or others who have acquired some lien or other beneficial interest in the property through the vendee while the property was in his possession. The purpose is to thus protect persons who have acquired liens or interests in the property while in the vendee's possession, not to give his creditors and others a perpetual right to secure liens upon it because of the temporary possession of the vendee under an unrecorded conditional contract of sale. A person to contest the vendor's title to the property must claim some beneficial interest in it, acquired before the vendor resumed possession of the property. A receiver as representing creditors stands in no different position. The paragraphs demurred to showed facts upon which the plaintiff could fairly claim to have acquired possession of the property in question, after condition broken and before the receiver was appointed by a taking on the writ of replevin, or (if the writ was improperly served) by the officer as its agent, and that being so in possession of the property it was, with the approval of the court and without prejudice, surrendered into the custody of the court in order that the court might determine the rights of the parties. |