Sec 394

Marriage being an institution which is superior to local law, all contracts to modify its character are void. - "Contracts are subordinated to the state, but the state is subordinated to marriage." Hence no contracts by the parties to a marriage modifying its essential characteristics are valid.7 This rule has been applied to agreements by which one party to divorce proceedings is bound to the other not to resist the process.8 All agreements in consideration of divorce proceedings are void for the same reason. Thus in a Missouri case in 1880, it appeared that during the pending of a divorce suit the parties agreed in writing that if a divorce was granted without alimony, certain securities were to be delivered to the wife's trustee, it was held that a suit could not be maintained on the contract.1 Where, during pendency of divorce procedure by the wife, she entered into an agreement with her husband by which she was to join in conveying certain real estate of his to a third party, she releasing her dower, and he was to settle certain property on her absolutely, it was held that as the consideration of divorce was one of the ingredients of the agreement it could not be enforced.2 When a divorce, also, is wrongfully obtained, an agreement by the parties not to disturb it will not be sustained.3

Date may be corrected by parol.

Duration of Sunday determined by statute.

Agreements modifying marriage are void, and so are agreements for divorce.

1 Supra, sec 382 et seq.

2 Supra, sec 386; and see observations, supra, sec 28.

3 Wh. on Ev. sec 335; Tutton v. Darke, 5 H. & N. 649; Hoyle v. Corn-wallis, 1 Str. 387; Hanson v. Shackle-ton, 4 Dowl. 48; Sasscer v. Bank, 4 Md. 409; Clough v. Goggins, 40 Iowa, 325; Allman v. Owen, 31 Ala. 167; Sprowl v. Lawrence, 33 Ala. 674; Rodgers v. State, 50 Ala. 102.

4 Nason v. Dinsmore, 34 Me. 391; see Hiller v. English, 4 Strobh. 486.

5 R. v. Treharne, 1 Mood. C. C. 298; Com. v. Harrison, 11 Gray, 308; and other cases cited Wh. Cr. Ev. sec 106; Heller v. Crawford, 37 Ind. 279.

6 Nason v. Dinsmore, 34 Me. 391; Hilton v. Houghton, 35 Me. 143; Tracy v. Jenks, 15 Pick. 465; Hill v. Dunham, 7 Gray, 543; Cranson v. Goss, 107 Mass. 443; Fox v. Abel, 2 Conn. 541.

7 Wh. Con. of L. sec 126.

8 Hope v. Hope, 8 D. M. G. 731; Sayles v. Sayles, 1 Fost. 312; Weeks v. Hill, 38 N. H. 199; Kilborn v. Field, 78 Penn. St. 194; Stoutenburg v. Ly-brand, 13 Oh. St. 228; Hamilton v. Hamilton, 89 111. 349; Everhardt v. Puckett, 73 Ind. 409; Comstock v. Adams, 23 Kan. 513.

Sec 395

Not only are agreements providing for future separation of husband and wife void,4 but limitations of property on either husband or wife in the event of separation are held, in England, against the policy of the law.5 But when there has been an actual separation betweeu husband and wife, deeds of settlement between them and third persons, as trustees, will be sustained, such deeds providing for the wife's separate support, and for the husband's protection from the wife's indebtedness.6 And in this country, as well as in England, deeds of settlement in such cases, where their object is immediate, and they are based on a separation which has actually taken place, are held valid where they contain no provisions contravening public policy.7

Agreements providing for separation are void.

1 Speck v. Dansman, 7 Mo. Ap. 165.

2 Hamilton v. Hamilton, 89 111. 349.

3 Comstock v. Adams, 23 Kan. 513.

4 Bispham's Eq. sec 115; Hill on Trustees, 668; Perry on Trusts, sec 672; Hindley v. Westmeath, 6 B. & C. 200; St. John v. St. John, 11 Ves. 526; and cases cited supra, sec 90.

5 Cartwright v. Cartwright, 3 D. M. G. 982; H. v. W., 3 K. & J. 382; cited Leake, 2d ed. 758.

6 See cases cited, supra, sec 90; Jones v. Waite, 5 Bing. N. C. 341; 4 M. & G. 1104; Wilson v. Wilson, 1 H. L. Ca.

538; 5 H. L. Ca. 40; Gibbs v. Harding L. R. 5 Ch. 336; Charlesworth v. Holt, L. R. 9 Ex. 38. That the covenants in such deeds will be enforced see Sanders v. Rodway, 16 Beav. 207; Williams v. Bailey, L. R. 2 Eq. 731; note to Stapilton v. Stapilton, 2 Lead. Cas. Eq. 853. In Hunt v. Hunt, 4 D. F. J. 221 et seg., 10 W. R. 215, the subject is examined with great fulness by Lord Westbury.

7 Walker v. Walker, 9 Wall. 743; Barron v. Barron, 24 Vt. 375; Fox v. Davis, 113 Mass. 255;. Beach v. Beach,.

Nor is the intervention of a trustee necessary,1 though where a trustee is agreed upon by the parties, but refuses to act, and the trust never is carried into effect, the covenants will not be enforced.2 A covenant not to sue for the restoration of conjugal rights will be sustained if inserted in such a deed, and will be enforced if the articles of separation have been otherwise executed.3 But a deed for an immediate separation is void unless the separation actually take place.4 And the reason is that while a separation which has taken place, or which is immediate, is regarded as a fact which justifies a proper settlement between the parties, to fee guarded by proper covenants, marriage is an institution which is so far superior to local law as not to be susceptible of being modified in its conditions by contract.5