(Ky.) 59; Bohannon v. Bohannon, 29 Ky. L. Rep. 143, 92 S. W. 597; Moayan v. Moayan, 114 Ky. 855, 60 L.R.A. 415, 102 Am. St. Rep. 303, 72 S. W. 33; Maraman v. Maraman, 4 Met. (Ky.) 87; Dance v. Dance, 6 Ky. L. Rep. 740; Stroud v. Ross, 118 Ky. 630, 82 S. W. 254; Bohannon v. Travis, 94 Ky. 59, 21 S. W. 354. Before the Act of March 15, 1894 (Laws 1894, chap. 76), regarding the property rights of married women and their powers to contract was enacted, it was held in Bohannon v. Travis, supra, that a contract between the husband and wife wife would not be enforced, in equity, unless it was "fair and just, founded on a valuable consideration, and reasonably certain as to its stipulations and the circumstances under which it was made;" and in Stroud v. Ross, 118 Ky. 630, 82 S. W. 254, since the enactment of the Statute of March 15, 1894, it was held that such act did not enlarge the powers of a married woman with reference to contracting with her husband. In the case of Bohannon v. Travis, supra, however, the contract was not one for a settlement or adjustment of property rights in contemplation of a previous separation or of an immediate separation of the parties. Nearly all of the contracts between husband and wife, which have been enforced in this jurisdiction, have been enforced in favor of the wife; but in other jurisdictions, and occasionally in this, such agreements have been enforced in favor of the husband when the facts and circumstances clearly showed that it was equitable that it should be done. Stroud v. Ross, supra. Such was done in the case of Stroud v. Ross, supra, and the doctrine that a contract between husband and wife, with regard to their property rights, might be en

ence, with approval, to the cases of Livingston v. Livingston, 2 Johns. Ch. 537; More v. Freeman, Bunbury, 205, 145 Eng. Reprint, 648; Hendricks v. Isaacs, 117 N. Y. 411, 6 L.R.A. 559, 15 Am. St. Rep. 524, 22 N. E. 1029; Haussman v. Burnham, 59 Conn. 117, 21 Am. St. Rep. 74, 22 Atl. 1065,-wherein the same doctrine was upheld.

The contract in the present instance was one made in contemplation of the continuance of a separation which had already occurred, or in contemplation of an immediate permanent separation, and its purpose was to definitely settle and adjust between the parties their property rights. It was made by the appellee with the assistance of counsel, and there is no pretense that it was not fairly made or fairly understood, and the appellee does not yet complain of any injustice done to her by the terms of the contract. It has been executed by the appellant by performing the undertakings in the contract which he undertook to perform, with reference to all legal provisions of the contract, and the conveyance of the property as there covenanted, and a release of all claims that he had, in compliance with the contract. It seems that it would be inequitable, after he having executed the contract, wherein a settlement such as was fair and just to the appellee was made, that it should not be complied with by the appellee on her part, with reference to the covenants of the contract which were legal, and hence we are of the opinion that the court was in error in failing to require the appellee to perform the covenant in the contract which required her to execute the necessary writings to enable him to receive the cash surrender value of the policy upon the life of Isaac Manitsky, he having paid all the premiums upon the policy, or else to require her to account to him for the amount of the cash surrender value of the policy at the time the contract was entered into.

(d) With reference to the complaint of appellant that, in view of the contract, he should not have

Parent and child -contract for maintenance of

been required to pay $50 for the maintenance of the child pending the litigation, it is evident that a husband and wife, with each other, cannot make a contract regarding the maintenance or custody of their child, which the court is compelled to enforce, nor can child-validity. the husband relieve himself of his primary liability to maintain his child by entering into a contract with someone else to do so, and thus forever relieve himself from such liability, as between him and the child. The chancellor, in fixing the custody of a minor child, will keep in view primarily the welfare of the child, and, in

Same-awarding custody of child-duty of court.

case of a separation of father and mother, will confide its custody to the parent who is most suitable to the trust, if either, as the right of each to its custody is of equal dignity. It is, however, not illegal for the parents, who have separated, to enter into a contract with each other for the custody and maintenance of their child, but the court will not recognize such contract unless it is one which insures the proper care and maintenance of the child. If the contract is such a one as the court would approve, keeping the welfare. of the child in view, it may recognize the contract, but such contract will not be enforced longer than it appears to be for the best interests of the child, and parents entering into such a contract are presumed to do so in contemplation of their obligations under the law and the rights of the child. So long, however, as the court recognizes the contract which has been entered into between the parents, its provisions should be enforced. The court, however, may confide the custody of the child to the mother, and require the father to contribute to its maintenance, if their respective suitability for its custody and financial circumstances render such a disposition necessary to the proper care of the child.

Where, as in the instant case, a

and the contract is thus fair and just to her, and the custody is such that the court will and does approve of it, she should be required to comply with the contract, as between her and the father, especially where it appears that the father has made a settlement, in the way of property, sufficient to enable the mother to maintain the child in a proper way. The court seems to have recognized the contract in its final judgment, by confiding the custody of the child to the mother, without any requirement that the father should contribute to its maintenance.

The evidence heard upon the motion for the allowance for the maintenance of the child during the pendency of the suit is not before us, nor were the pleadings upon the motion sufficient to Appeal-facts

court-assumption of error.

apprise us of what not before were the issues, nor the particular reason which moved the court, and hence we cannot assume that the court was in error in its determination to require a contribution from the husband temporarily.

It is therefore ordered that the judgment be affirmed as to requiring the appellant to pay the costs of the litigation, including the attorneys' fees, and the $50 allowance for the maintenance of the child pending the litigation, but the judgment is reversed because of the failure of the court to require appellee to carry out her contract with reference to the surrender value of the policy of insurance upon the life of Isaac Manitsky, of which she was the beneficiary, or to reimburse the appellant to the extent of the cash surrender value at the time of the making of the contract, and the action is remanded for proceedings consistent with this opinion.

1. What constitutes collusion:

a. Generally, 699.

b. Illustrations:

1. Mutual desire for divorce, 702.

2. Consent to commission of offense, 704.

3. Voluntary appearance, 705. 4. Failure to appear and defend, 705.

1. What constitutes collusion.

a. Generally.

The term "collusion," as applied to divorce proceedings, has been defined. to be "an agreement between a husband and wife to procure a judgment dissolving the marriage contract, which judgment, if the facts were known, the court would not grant." Doeme v. Doeme (1904) 96 App. Div. 284, 89 N. Y. Supp. 215.

In McIntyre v. McIntyre (1894) 9 Misc. 252, 30 N. Y. Supp: 200, collusion in the matrimonial law was defined as "an agreement between husband and wife for one of them to commit, or to appear to commit, or to be represented in court as having committed, a breach of matrimonial duty, for the purpose of enabling the other to obtain the legal remedy of divorce as for a real injury."

In Griffiths v. Griffiths (1905) 69 N. J. Eq. 689, 60 Atl. 1090, the court said: "Collusion in cases of this class is not only a corrupt agreement between the parties whereby one shall commit the matrimonial offense, or under the terms of which evidence of an offense not committed is fabricated, but also includes any agreement whereby evidence of a valid defense is suppressed; and, in my judgment, such an agreement, if not expressed, may be implied from the acts of the parties." See to the same effect, Pohlman v. Pohlman (1901) 60 N. J. Eq. 28, 46 Atl. 658;. Hayes v. Hayes, 1 West. Week. Rep. (Can.) 85.

In Crewe v. Crewe (1800) 3 Hagg. Eccl. Rep. (Eng.) 123, Lord Stowell

II. Effect of collusion:

a. Generally, 712.

b. Vacation of decree, 714.

said: "Collusion, as applied to this subject, is an agreement between the parties for one to commit, or appear to commit, a fact of adultery, in order that the other may obtain a remedy at law as for a real injury. Real injury there is none, where there is a common agreement between the parties to effect their object by fraud in a court of

justice." See to the same effect, Todd v. Todd (1866) L. R. 1 Prob. & Div. (Eng.) 121, 35 L. J. Prob. N. S. 34, 12 Jur. N. S. 237, 13 L. T. N. S. 759, 14 Week. Rep. 350; Jessop v. Jessop (1861) 2 Swabey & T. (Eng.) 301, 30 L. J. Prob. N. S. 193, 7 Jur. N. S. 609.

In Butler v. Butler (1890) L. R. 15 Prob. Div. (Eng.) 66, the court, in defining collusion, said: "An agreement between the parties to a divorce suit to withhold from the court pertinent and material facts, which might have been adduced on the trial in evidence in support of a countercharge against the respondent or corespondent, amounts to collusion, even though the suppressed facts might not have been sufficient to have established the countercharge."

In Scott v. Scott, L. R. [1913] P. (Eng.) 52, 82 L. J. Prob. N. S. 39, 108 L. T. N. S. 49, 57 Sol. Jo. 227, 29 Times L. R. 206, the court said: "Collusion is misconduct. Like conspiracy, it takes two persons to collude. It must be an act done with an improper intention. I venture to think that collusion may be said to be an improper act done or an improper refraining from doing an act for a dishonest purpose." See to the same effect, Churchward v. Churchward, L. R. [1895] P.

(Eng.) 7, 64 L. J. Prob. N. S. 18, 11 Reports, 626, 71 L. T. N. S. 782, 43 Week. Rep. 380.

In Rapp v. Rapp (1912) 162 Mo. App. 673, 145 S. W. 114, the court said: "Collusion is a conspiracy of the husband and wife to obtain a decree of divorce by false or manufactured testimony." See to the same effect, Bowe v. Bowe (1907) 55 Misc. 403, 106 N. Y. Supp. 608; Wiemer v. Wiemer (1911) 21 N. D. 371, 130 N. W. 1015; Lyon v. Lyon (1904) 13 Pa. Dist. R. 623; Loomis v. Loomis (1909) 20 Pa. Dist. R. 731.

In Sheehan v. Sheehan (1910) 77 N. J. Eq. 411, 140 Am. St. Rep. 566, 77 Atl. 1063, the court, in construing the term "collusion," as used in the New Jersey Divorce Act of 1907, said: "Parties may not be permitted to make agreements with respect to divorce suits which would be perfectly proper to be made in other litigations. In divorce suits public policy requires that certain agreements shall not be made between the parties and when such interdicted agreements are made they are termed 'collusive.' What is termed 'collusion' in divorce suits is a definite kind of agreement of parties concerning the divorce. If collusion is to be limited (as some of the definitions would limit it) to ‘a corrupt bargain to impose a case upon the court,' that is, either by the suppression of evidence or by the manufacture thereof, then, each case where there was an agreement between the parties would have to be investigated to see whether such an agreement came within the interdiction of the definition of collusion. But if collusion is given an ampler definition, so as to include any agreement between the parties as a result of which no defense shall be made, then the case will not be investigated after the ascertainment that there is such an agreement, because that agreement itself would be within the definition of collusion and would defeat the suit. I cannot escape the conviction that our statute which requires an affidavit by the petitioner that 'the said petition is not made by reason of any collusion'

lusion' must be given the broader and ampler definition. It seems to me to be perfectly clear that if a man and wife agree that one of them shall bring a suit for divorce against the other, and that no defense shall be made, such an agreement should be included in the definition of collusion. And it also seems clear to me that when they have thus agreed, the party making the petition certainly makes it by collusion. This definition, of course, would not include cases in which the defendant was willing the suit should be brought, or was even anxious or desirous that it should be brought, but would include cases where the defendant and the petitioner agreed that it should be brought and that no defense shall be made; a fortiori, where he not only agrees that it should be brought and be undefended, but advances money to induce its bringing. My reason for thinking that the definition should be the broader one is that it would then be clearly and consistently in keeping with the public policy which we maintain in this respect. Because, if we limit the term 'collusion' to the narrow definition (which only includes the suppression of evidence or the manufacture thereof), and permit agreements that suits shall be brought in which no defense shall be made, we are creating by such permission a situation in which the chances of our ever finding out the truth concerning the matter are almost zero. If parties agree that one of them shall bring a suit and the other will not defend, it is impossible to escape the conviction that the court will have practically no opportunity to ascertain whether evidence is suppressed, or manufactured evidence is offered. I do not wish to be understood as including within the definition of collusion agreements by which the husband contracts to pay a certain amount of alimony to his wife without the intervention of the court. I do think, however, that within the definition of collusion should be those cases in which the husband agrees with the wife that he will furnish a sum of money with which she is to procure a divorce against him. I think

that what has been done in some courts should be done in such cases; that is, where the court is convinced that there is not manufactured testimony or suppressed evidence, but that the suit is collusive because of the agreement, the suit should be dismissed without prejudice to the right to bring another suit which shall not be collusive. I am clearly of opinion that if it be held that an agreement between husband and wife that suit shall be brought and no defense entered is within the definition of collusion, the court should infer such an agreement from the fact that the husband has, before the suit was begun, advanced money to the wife, or to a lawyer for the wife, for the purpose, of bringing the suit."

In Dodge v. Dodge (1904) 98 App. Div. 85, 90 N. Y. Supp. 438, it was said that the collusion which is fatal to a valid decree of divorce is "collusion in procuring or conniving at the act or acts of adultery."

Although collusion and connivance are closely related, it has been held that the distinction between them is that collusion is a corrupt agreement, while connivance is a corrupt consenting. Rogers v. Rogers (1830) 3 Hagg. Eccl. Rep. (Eng.) 57; Crewe v. Crewe (1800) 3 Hagg. Eccl. Rep. (Eng.) 129; Phillips v. Phillips (1844) 1 Rob. Eccl. Rep. (Eng.) 144; Dennis v. Dennis (1896) 68 Conn. 186, 34 L.R.A. 449, 57 Am. St. Rep. 95, 36 Atl. 34; Morrison v. Morrison (1886) 142 Mass. 361, 56 Am. Rep. 688, 8 N. E. 59; Rapp v. Rapp (1912) 162 Mo. App. 673, 145 S. W. 114.

While the courts have not always been careful to distinguish between. connivance and collusion, it seems to be well settled that, to constitute collusion, there must be an agreement between husband and wife, looking to the procuring of a divorce.

Michigan.-Thompson v. Thompson (1888) 70 Mich. 62, 37 N. W. 710.

Missouri.-Gentry v. Gentry (1896) 67 Mo. App. 550; Rapp v. Rapp (1912) 162 Mo. App. 673, 145 S. W. 114. Nebraska. Branson V. Branson (1906) 76 Neb. 780, 107 N. W. 1011. New Jersey.-Drayton v. Drayton

(1896) 54 N. J. Eq. 298, 38 Atl. 25; Pohlman v. Pohlman (1901) 60 N. J. Eq. 28, 46 Atl. 658; Griffiths v. Griffiths (1905) 69 N. J. Eq. 689, 60 Atl. 1090; Sheehan v. Sheehan (1910) 77 N. J. Eq. 411, 140 Am. St. Rep. 566, 77 Atl. 1063.

New York.-Doeme v. Doeme (1904) 96 App. Div. 284, 89 N. Y. Supp. 215; McIntyre v. McIntyre (1894) 9 Misc. 252, 30 N. Y. Supp. 200; Bowe v. Bowe (1907) 55 Misc. 403, 106 N. Y. Supp. 608.

North Dakota.-Wiemer v. Wiemer (1910) 21 N. D. 371, 130 N. W. 1015. Oregon.-Phillips v. Thorp (1882) 10 Or. 494.

Pennsylvania.-Latshaw v. Latshaw (1901) 18 Pa. Super. Ct. 465; Wilhelmi v. Wilhelmi (1900) 9 Pa. Dist. R. 685; Taylor v. Taylor (1908) 17 Pa. Dist. R. 642; Baturin v. Baturin (1910) 20 Pa. Dist. R. 43; Loomis v. Loomis (1909) 20 Pa. Dist. R. 731.

Texas.-Erwin v. Erwin (1897) Tex. Civ. App. 40 S. W. 53. England. Crewe v. Crewe (1800) 3 Hagg. Eccl. Rep. 129; Gray v. Gray (1862) 2 Swabey & T. 559, 31 L. J. Prob. N. S. 83, 6 L. T. N. S. 336, 10 Week. Rep. 863; Gethin v. Gethin (1861) 31 L. J. Prob. N. S. 43; Todd v. Todd (1866) L. R. 1 Prob. & Div. 121, 35 L. J. Prob. N. S. 34, 12 Jur. N. S. 237, 13 L. T. N. T. 759, 14 Week. Rep. 350; Butler v. Butler (1890) L. R. 15 Prob. Div. 66, 59 L. J. Prob. N. S. 25, 62 L. T. N. S. 344, 38 Week. Rep. 390; Scott v. Scott L. R. [1913] P. 52, 82 L. J. Prob. N. S. 39, 108 L. T. N. S. 49, 57 Sol. Jo. 227, 29 Times L. R. 206; Bacon v. Bacon (1877) 25 Week. Rep. 560.

Thus, in Wiemer v. Wiemer (1910) 21 N. D. 371, 130 N. W. 1015, it was said: "The representation of such acts as having been committed, when made to the court, must, to constitute collusion, be a misrepresentation; that is, an agreement to misrepresent the facts; or, more clearly, misrepresentation in court by agreement, which makes it appear that acts constituting a cause for divorce have been committed by the defendant when such acts have not been committed." And in Drayton v. Drayton (1896) 54 N. J.