
72 S.E.2d 583 (1952)
236 N.C. 230
HOWLAND
v.
STITZER et al.
No. 103.
Supreme Court of North Carolina.
October 8, 1952.
*586 David H. Armstrong, Troy, for defendant, appellant Hawes.
William J. Cocke and C. N. Malone, Asheville, for plaintiff, appellee.
DENNY, Justice.
In the State of New York, where an action for divorce is brought by a husband or wife, and the final judgment of divorce has been rendered in favor of the wife, the Court upon application of the husband on notice, and proof of the remarriage of the wife, must modify such judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders, or of both, directing payment of money for the support of the wife. Thompson's Laws of New York, Civil Practice Act, § 1172-c; Dumproff v. Dumproff, 138 Misc. 298, 244 N.Y.S. 597; Kirkbride v. Van Note, 275 N.Y. 244, 9 N. E.2d 852, 112 A.L.R. 243.
The New York divorce decree, dissolving the marriage between the plaintiff and the defendant, Mrs. Hawes, which decree directed the defendant therein to support his wife, Mrs. Amber Howland, the plaintiff therein, during the entire period of her lifetime in accordance with the terms of the agreement between the parties dated 2 April, 1947, having been modified as authorized and provided in the above statute, the parties involved are relegated to their contractual rights under the agreement. Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265; Severance v. Severance, 260 N.Y. 432, 183 N.E. 909; Goldfish v. Goldfish, 193 App.Div. 686, 184 N.Y.S. 512. This simply means that although the *587 agreement may constitute a valid and enforceable contract, the provisions therein can no longer be enforced by a contempt order. Goldman v. Goldman, supra; Levy v. Levy, 149 App.Div. 561, 133 N.Y.S. 1084; Kunker v. Kunker, 230 App.Div. 641, 246 N.Y.S. 118; Stanley v. Stanley, 226 N. C. 129, 37 S.E.2d 118.
A contract between husband and wife to separate in the future is void, but it is too well settled, in this country, to admit of discussion, that after a separation has taken place a valid contract may be made, which will bind the husband to contribute the sums therein provided for the future support of his wife. Galusha v. Galusha, 116 N.Y. 635, 22 N.E. 1114, 6 L.R. A. 487; Kunker v. Kunker, supra; Schnitzer v. Buerger, 237 App.Div. 622, 262 N. Y.S. 385; Winter v. Winter, 191 N.Y. 462, 84 N.E. 382, 16 L.R.A.,N.S., 710; Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327, Ann.Cas.1913D, 261.
Where parties to a separation agreement have the legal capacity to contract and the subject matter involved is lawful, and the provisions contained therein are just and equitable, and it has been properly and voluntarily executed, in the absence of fraud or duress, the courts are without power to modify it. Galusha v. Galusha, supra; Goldman v. Goldman, supra; Kunker v. Kunker, supra.
In the last-cited case it was pointed out that the wife had the choice of two methods for obtaining supportby agreement or by judgment. The Court said [230 App. Div. 641, 246 N.Y.S. 121]: "Both had their advantages and disadvantages. The contract method had permanence. No matter what hardships it might later impose upon her husband, there was no power in the court to modify it * * *. The agreement could not be enforced by contempt proceedings, nor by sequestration of property. On the other hand, if she submitted her claims for support to the court, inquiry would be made into the means and earning capacity of her husband and a sum fixed as a just and adequate substitute for her support. * * * Payments might be secured or enforced by contempt proceedings or sequestration. * * * If she remarried, the judgment must be modified in respect to alimony." Civil Practice Act, § 1159 (now Section 1172-c).
The New York courts recognize the validity of separation agreements made during marriage, so long as they are not agreements to separate or to release the husband from his obligation to support his wife. In re Rhinelander's Estate, 290 N.Y. 31, 47 N.E.2d 681; Winter v. Winter, supra; Clark v. Fosdick, 118 N.Y. 7, 22 N.E. 1111, 6 L.R.A. 132; Galusha v. Galusha, supra.
The sole remaining question for determination on this appeal is whether the plaintiff, in view of the facts and circumstances disclosed by the record, is entitled to allege collusion as a defense to the individual defendant's rights under the separation agreement entered into 2 April, 1947.
The plaintiff in this action insists that the above agreement was entered into by and between the parties as a scheme to obtain a divorce in violation of Section 51 of the Domestic Relations Law of the State of New York. In his brief, however, he states, "that he had previously entered into an agreement on September 18, 1946 which prescribed that he should pay $350.00 per month which was very onerous, and which was terminable on her remarriage; that thereafter she had threatened never to remarry; that the agreement had been entered into without knowing his rights and without impartial counsel; and that the agreement of April 2, 1947 was entered into pursuant to an agreement that she should give him a divorce, institute an action and that he would not defend the same."
It is well to note, in this connection, that the action against the plaintiff for divorce had been pending for nearly two months before the second separation agreement was entered into. The plaintiff is very careful not to deny the truth of the allegations or the evidence in support of his adulterous conduct, the ground on which the divorce was granted. He insists that the divorce was properly and legally granted; that the collusion affected only the separation agreement. Or to put it another way, he contends there was no imposition of *588 fraud on the court that could possibly affect the validity of the divorce granted, but that the separation agreement was collusive and should be so held, thus releasing him of all obligations under it. It appears that the moving consideration on his part in making the provision for the support of his wife for life, regardless of her marital status, rather than for life or until her remarriage, was (1) to get out from under the onerous payment to her of $350 per month, and (2) to assure him that she would proceed with the pending divorce action without undue delay. He was anxious to be divorced so that he could remarry. He now insists upon the validity of everything that was done in so far as it inures to his benefit or has any bearing on the validity of the divorce decree, but demands the right to repudiate every provision that imposes any burden or obligation on him.
In discussing separation agreements in 17 Am.Jur., Divorce and Separation, Section 499, page 408 et seq., it is said: "The validity of such agreements depends on whether there is an attempt to obtain a divorce not justified by the real facts and thus to practice a fraud on the court. An agreement between the parties, not involving an imposition on the court or a suppression of facts, but intended merely to facilitate the proofs and smooth the asperities of the litigation, is valid * * *. Under this rule, where a separation has been induced by the vicious conduct or disability of one of the parties, without inducement or fault of the other, a contract looking to a settlement of property rights and the proper maintenance of the one not in fault is in no sense repugnant to public policy. The amount which the husband is to pay the wife, the terms of the payment, and the length of time during which such payment is to continue may all be arranged between them by consent. In other words, agreements made upon the separation of husband and wife whereby a division of the property or a provision for the support of the wife is made and the husband is released from obligation to support, otherwise than as provided for in such contracts, are, as a rule, considered to be valid, provided they are properly executed. Such agreements violate no rule of public policy, * * *."
The above statement of the law is consonant with the decisions on the subject in the State of New York. In re Rhinelander's Estate, supra; Graham v. Hunter, 266 App.Div. 576, 42 N.Y.S.2d 717; Goldman v. Goldman, supra; Butler v. Marcus, 264 N.Y. 519, 191 N.E. 544; West v. Burke, 165 App.Div. 667, 151 N.Y.S. 329, affirmed 219 N.Y. 7, 113 N.E. 561; Hamlin v. Hamlin, 224 App.Div. 168, 230 N.Y. S. 51.
In the case of Butler v. Marcus, supra, the husband and wife, while living apart, made an agreement whereby the wife was to be paid a monthly sum for one year, the payments to stop at the end of the year if the parties were still married; but if before the end of that year either party should obtain a divorce, then the payments should continue. The wife obtained a divorce before the end of the critical year. In a suit brought by the wife to enforce the agreement against her former husband, the defense was interposed that the agreement was void as against public policy and in violation of Section 51 of the Domestic Relations Law. The Court granted a motion to strike the defense as insufficient in law and entered a summary judgment in favor of the plaintiff. The ruling was affirmed on appeal, and later cited with approval in In re Rhinelander's Estate, supra. Cf. Hoyt v. Hoyt, 265 App.Div. 223, 38 N.Y.S. 2d 312.
In Graham v. Hunter, supra [266 App. Div. 576, 42 N.Y.S. 722], the defendant attacked the validity of the separation agreement asserting it to be illegal and unenforceable in the courts of New York in that it was a contract to dissolve the marriage. This claim was based upon a provision of the agreement, dated December 7, 1932, which conditioned the payments to the wife for her maintenance and support upon her personal submission to the jurisdiction of any court of competent jurisdiction in any action for a divorce which might thereafter be commenced by the defendant. It also provided that the plaintiff would not be entitled to any payments *589 thereunder if she did anything "which may have any material tendency to delay or hinder the filing and entry * * * of a decree or judgment of divorce", by any such court of competent jurisdiction. The parties involved were divorced in the State of Nevada, and while the New York Court held that it could not modify the decree, it did say, in discussing agreements which have a direct tendency toward dissolving marriages: "We do not believe that the provision in the agreement of December 7th necessarily comes within such condemnation."
Certainly the separation agreement entered into by the plaintiff and the individual defendant on 2 April, 1947, contains nothing violative of Section 51 of the Domestic Relations Act of the State of New York. And it is clear from the record and the plaintiff's statements in his brief, that he was the movant in bringing about the abrogation and cancellation of the former separation agreement which was not satisfactory to him, and the procurement of the execution of the agreement he now seeks to attack. The income from the four shares of stock assigned to his former wife ordinarily amounts to about $1,600 annually. He stood by and never attacked the agreement in the divorce proceedings, Hoyt v. Hoyt, supra, nor until after the income therefrom had been paid to his former wife for more than 2½ years. He recognized the validity of the contract until his former wife remarried. Under the terms of the agreement she is to receive the income from the above stock for life, regardless of her marital status. Her remarriage had nothing whatever to do with the validity or invalidity of the agreement. Graham v. Hunter, supra. Having by his conduct ratified and confirmed the agreement, we hold that he is now estopped from attacking it. He that seeks relief in a court of equity should enter the chancery with clean hands.
The parties are entitled to have the court consider the instruments involved as they are written and to adjudicate their respective rights thereunder. But the motion to strike from the plaintiff's reply all the allegations which attack the validity of the separation agreement entered 2 April, 1947, should have been granted, and the ruling to the contrary is
Reversed.
