facts are mutually suppressed, there is collusion which bars a divorce, although their production would not have changed the result. Butler v. Butler (1890) L. R. 15 Prob. Div. (Eng.) 66, 59 L. J. Prob. N. S. 25, 62 L. T. N. S. 344, 38 Week. Rep. 390; Gentry v. Gentry (Mo.) supra; Branson v. Branson (1906) 76 Neb. 780, 107 N. W. 1011.

In Peck v. Peck (1887) 44 Hun (N. Y.) 290, it was said: "It is not the policy of the law to allow judgments of divorce to be taken where a valid defense exists, and courts on their own motion interfere to prevent such result where the facts are brought to their knowledge."

In Fisher v. Fisher (1902) 95 Md. 314, 93 Am. St. Rep. 334, 52 Atl. 898, the court said: "If there be reason for the suspicion that important testimony has not been produced, the judge may, of his own motion, elicit such evidence in any manner that the rules of his tribunal allow."

In Moore v. Moore (1858) 22 Tex. 237, it was said: "In decreeing a divorce, the judge does not proceed, as in other cases, upon the verdict of the jury, but upon his own judgment, after the jury, by their verdict, have affirmed the truth of the material allegations of the petition. The mind of the judge must be satisfied, not only of the sufficiency of the causes alleged, but of the truth and sufficiency of the evidence by which they are established, independently of the verdict."

17 Minn. 181, Gil. 153; Olmstead v. Olmstead (1889) 41 Minn. 297, 43 N. W. 67.

Missouri.-Rosenfeld v. Rosenfeld (1896) 67 Mo. App. 29; Gentry v. Gentry (1896) 67 Mo. App. 550; Torlotting v. Torlotting (1899) 82 Mo. App. 192. V. Bransor.

Nebraska.-Branson

(1906) 76 Neb. 780, 107 N. W. 1011.

New Jersey.-Winship v. Winship. (1863) 16 N. J. Eq. 107; Costill v. Costill (1890) 47 N. J. Eq. 346, 21 Atl. 35; 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.-Hanks v. Hanks (1841) 3 Edw. Ch. 469; Huntley v. Huntley (1893) 73 Hun, 261, 26 N. Y. Supp. 266; Goldner v. Goldner (1900) 49 App. Div. 395, 63 N. Y. Supp. 431; Galloway v. Galloway (1904) 92 App. Div. 300, 86 N. Y. Supp. 1078; Dodge v. Dodge (1904) 98 App. Div. 85, 90 N. Y. Supp. 438; Richardson v. Richardson (1906) 114 N. Y. Supp. 912; McIntyre v. McIntyre (1894) 9 Misc. 252, 30 N. Y. Supp. 200; Cowan v. Cowan (1898) 23 Misc. 754, 53 N. Y. Supp. 93; Bowe v. Bowe (1907) 55 Misc. 403, 106 N. Y. Supp. 608.

Ohio.-Wolf v. Wolf (1833) Wright 243; Smith v. Smith (1834) Wright 643; Mansfield v. Mansfield (1833) Wright, 284.

3 Hagg. Eccl. Rep. 129; Lloyd v. Lloyd (1857) 1 Swabey & T. 567, 30 L. J. Prob. N. S. 97; Shaw v. Gould (1868) L. R. 3 H. L. 55, 37 L. J. Ch. N. S. 433, 18 L. T. N. S. 833; Barnes v. Barnes (1867) L. R. 1 Prob. & Div. 505, 37 L. J. Prob. N. S. 4, 17 L. T. N. S. 268, 16 Week. Rep. 281; 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; Hunt v. Hunt (1878) 47 L. J. Prob. N. S. 22, 39 L. T. N. S.

45; Churchward v. Churchward L. R. [1895] P. 7, 71 L. T. N. S. 782, 64 L. J. Prob. N. S. 18, 11 Reports, 626, 43 Week. Rep. 380; 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. S. 759, 14 Week. Rep. 350; 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; Farulli v. Farulli, L. R. [1917] P. 28, 86 L. J. Prob. N. S. 35, 116 L. T. N. S. 18, 61 Sol. Jo. 116, 81 J. P. 28.

Canada. Hayes v. Hayes, 1 West. Week. Rep. 85.

In Rosenfeld v. Rosenfeld (1896) 67 Mo. App. 29, it was said: "Proof of collusion prior to the institution of the suit is necessarily fatal to that proceeding. The plaintiff is bound to make oath that the suit is not instituted collusively and, if such

collusion existed at the date of the institution of the suit, it is conclusive against the plaintiff's right of action,

. if it exists at the date of the trial, it is, if established, conclusive against the decree, because both under the decisions and on principle it is a fraud upon the court."

And this is true although there is adequate and sufficient cause for a divorce. 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; Lloyd v. Lloyd (1858) 1 Swabey & T. (Eng.) 567, 30 L. J. Prob. N. S. 97; Butler v. Butler (1890) L. R. 15 Prob. Div. (Eng.) 66, 59 L. J. Prob. N. S. 25, 62 L. T. N. S. 344, 38 Week. Rep. 390; Goodwin v. Goodwin (1810) 4 Day (Conn.) 343; Thompson v. Thompson (1888) 70 Mich. 62, 37 N. W. 710; Rosenfeld v. Rosenfeld (Mo.) supra; McDonald v. McDonald (1914) 175 Mo. App. 513, 161 S. W. 850; Mansfield v. Mansfield (1833) Wright (Ohio) 284.

Thus, in Rosenfeld v. Rosenfeld (1896) 67 Mo. App. 29, it was said: "Cases are numerous in which decrees have been denied, or have been vacated, because collusion was shown to have existed at the date of the institution of the suit or at the date of the trial, and that, regardless as to wheth

er the plaintiff had good ground for divorce."

In Thompson v. Thompson (1888) 70 Mich. 62, 37 N. W. 710, the court, in speaking of a collusive agreement between the parties, said: "We do not feel called upon to decide whether the complainant had a legal cause for divorce under the testimony. . . . It is immaterial whether complainant had cause for divorce or not."

In 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, a decree of divorce was denied, it appearing that a husband committed adultery with the knowledge and consent of his wife, and under an agreement that he should do so for the purpose of furnishing grounds for her divorce.

In Butler v. Butler (1890) L. R. 15 Prob. Div. (Eng.) 66, 59 L. J. Prob. N. S. 25, 62 L. T. N. S. 344, 38 Week. Rep. 390, a decree was denied because it appeared that, pending an action of divorce, the parties agreed that the charge of adultery against the husband with four named persons should be limited to but one of the named persons; that the wife would bring forward such evidence as would satisfy the court of his adultery with the one person, and that he would not press the charge of adultery made against his wife.

But a collusive agreement, fully and unequivocally repudiated before the trial, and disclosed to the court on the trial, has been held not to bar a decree of divorce. Loveren v. Loveren (1895) 106 Cal. 509, 39 Pac. 801; Rosenfeld v. Rosenfeld (1896) 67 Mo. App. 29; Shirk v. Shirk (1898) 75 Mo. App. 573.

Thus, in Loveren v. Loveren (1895) 106 Cal. 509, 39 Pac. 801, the court said: "Appellant contends that if the agreement was void, then the whole decree of divorce should be set aside. But the court was not imposed upon. While the pretended agreement was yet wholly executory, and before any further proceeding was taken in the case, the respondent repudiated it and disclosed all the facts to the court. The court was thus put upon its guard.

and the intended fraud was frustrated. Appellant introduced the letters and photographs referred to in the stipulation; the pleadings were not withdrawn or changed, and all the issues were vigorously contested under the watchful eyes of the judge, who had been informed of all the facts touching the void stipulation."

In Shirk v. Shirk (1898) 75 Mo. App. 573. It was said: "It is not pretended that there was any collusion between the parties at the commencement of the suit. The agreement which it is insisted was collusive was entered into after the plaintiff's suit was commenced. The only evidence adduced which tends to establish the existence of collusion at the trial is to be found in that agreement. While it was executory, and before the trial, the plaintiff fully repudiated it, and by his replication disclosed all the facts to the court. The court was thus put upon its guard and the intended fraud was frustrated. That the collusive agreement was repudiated by both parties long before the trial must be conceded. About a month before the trial the defendant's attorneys demanded of plaintiff the payment of $3,000 in addition to what defendant had already received under the agreement as a condition upon which defendant would file no answer in the plaintiff's action against her. This proposition plaintiff declined, and thereafter both parties repudiated the agreement. The spirit of hostility evinced by the parties both in their pleadings and at the trial conclusively shows that though the element of collusion may have crept into the case after the suit was brought, that it had no existence there when the trial took place. And as it was not present in the case either at the commencement of the suit or at the trial, the case stood and was properly disposed of as if it had never therein existed at all."

In Rosenfeld v. Rosenfeld (1896) 67 Mo. App. 29, the court said: "We are, however, aware of no case which goes to the extent of holding that an attempted and executory collusive agreement, fully and unequivocally repudiated before the trial, and before

any preparation for trial, and duly disclosed to the court upon the trial, is fatal to a decree for plaintiff."

It has been held that the effect of collusion is the same in a proceeding to annul a marriage as in an action of divorce; and that in such a proceeding it must appear to the satisfaction of the court that the parties have not acted collusively. Sickles v. Carson (1875) 26 N. J. Eq. 440; E. B. v. E. C. B. (1858) 28 Barb. (N. Y.) 299; Menzies v. Farnon (1909) 18 Ont. L. R. 174.

b. Vacation of decree.

It has been held that where it appears that there was collusion in obtaining a decree of divorce, the court will vacate the decree. Danforth v. Danforth (1883) 105 Ill. 603; Haverty v. Haverty (1886) 35 Kan. 438, 11 Pac. 364; Rosenfeld v. Rosenfeld (1896) 67 Mo. App. 29; McDonald v. McDonald (1913) 175 Mo. App. 513, 161 S. W. 850; Winder v. Winder (1910) 86 Neb. 495, 125 N. W. 1095; Singer v. Singer (1863) 41 Barb. (N. Y.) 139; McIntyre v. McIntyre (1894) 9 Misc. 252, 30 N. Y. Supp. 200; Baturin v. Baturin (1910) 20 Pa. Dist. R. 43.

But a decree of divorce, although procured by collusion of the parties, is not void, and neither of the guilty parties is entitled as a matter of right to have the decree set aside on that ground. Johnson v. Johnson (1913) 182 Ala. 376, 62 So. 706, wherein it was said that it seems, on the ground of public policy, to be the better rule to set aside a collusive decree, if the application is seasonably made in good faith, and not from any expected personal advantage.

In Danforth v. Danforth (1882) 105 Ill. 603, it appeared that a stipulation was entered into between the parties, providing for the granting of a decree of divorce, and that when the wife or her attorney should produce a copy of the decree, she should be paid a certain sum by her husband. In setting aside the decree, the court said: "The effect of this agreement must have been precisely the same as had appellant and appellee agreed that she would do nothing to prevent him from obtaining a divorce, and, if necessary,

she would assist for the purpose. It is not the mere form of words, but it is the intent the thing or purpose intended to be accomplished-that constitutes the agreement, when that can be determined from the instrument itself. Here the manifest intention was that complainant should obtain the divorce and appellant to receive the money. It is true an answer was filed, but no evidence was produced, notwithstanding appellant swears that facts existed that would, if proved, have prevented the decree that was obtained; yet the decree was obtained, as was expected and intended when the agreement was executed. There was not improper delay in entering the motion to set aside the decree. It was made at the same term, and whilst the court had control over all proceedings had at the term. The decree had not become an unalterable record. It, with the records of other proceedings of the term, was still in fieri, and under the control of the court to amend, change, or vacate it, as justice might require."

In Baturin v. Baturin (1910) 20 Pa. Dist. R. 43, the court set aside a decree of divorce for the reason that the parties had entered into an agreement before the granting of the decree, whereby the wife, in consideration of a certain sum, released her husband from the payment of alimony directed by the decree.

In Winder v. Winder (1910) 86 Neb. 495, 125 N. W. 1095, it appeared that both parties were desirous of a divorce, and that property settlements in anticipation thereof were made by

the husband on the wife. It further appeared that these facts were concealed from the court when a decree of divorce was granted. The court vacated the decree when it learned of the facts.

In McDonald v. McDonald (1913) 175 Mo. App. 513, 161 S. W. 850, a decree of divorce was set aside, it appearing that material facts claimed by both parties to exist were suppressed, and that, but for the suppression by the husband of charges he otherwise would have made against his wife, he would have been unable

to procure her signature to the answer, and would have been unable to proceed in the action without a contest.

Where the vacation of a decree of divorce, obtained by collusion, is sought by a participant in the fraud, the court will refuse to disturb the decree; especially where the decree has been acquiesced in for a considerable period of time, or where the opposing party has remarried, and children have been born of the second marriage. Johnson v. Johnson (1913) 182 Ala. 376, 62 So. 706; Hubbard v. Hubbard (1893) 19 Colo. 13, 34 Pac. 170; Simons v. Simons (1881) 47 Mich. 253, 10 N. W. 360; Carlisle v. Carlisle (1893) 96 Mich. 128, 55 N. W. 673; Nichols v. Nichols (1874) 25 N. J. Eq. 60; Singer v. Singer (1863) 41 Barb. (N. Y.) 139; Whittley v. Whittley (1908) 60 Misc. 201, 111 N. Y. Supp. 1078; Wiemer v. Wiemer (1911) 21 N. D. 371, 130 N. W. 1015; Newman v. Newman (1910) 27 Okla. 381, 112 Pac. 1007; Erdman v. Erdman (1914) 43 Okla. 172, 141 Pac. 965; Karren v. Karren (1902) 25 Utah, 87, 60 L.R.A. 294, 95 Am. St. Rep. 816, 69 Pac. 465; Robinson v. Robinson (1914) 77 Wash. 663, 51 L.R.A. (N.S.) 534, 138 Pac. 288.

Thus, in Simons v. Simons (1881) 47 Mich. 253, 10 N. W. 360, wherein it appeared that a wife had obtained a decree of divorce on sworn allegations that there was no collusion, and subsequently filed a bill to set aside the decree on the ground that it was collusively obtained, the court, in dismissing the subsequent bill, said: "Without this sworn allegation in her bill of complaint it would not have been entertained; and she having thereby given the court jurisdiction and permitted the case to proceed to a final decree, she cannot now be permitted to take advantage of her own wrong and show that there was collusion between herself and husband in that case. She was not misled or defrauded therein, but understood well what was being done, and that her husband consented. Indeed, the whole matter was simply a shameless

bargain, and, whether right or wrong, she must now abide by it.”

In Robinson v. Robinson (1914) 77 Wash. 663, 51 L.R.A. (N.S.) 534, 138 Pac. 288, the court refused to set aside a decree of divorce at the instance of a spouse who had testified falsely and suppressed material facts in the trial of the action.

In Hubbard v. Hubbard (1893) 19 Colo. 13, 34 Pac. 170, a former wife brought an action to have a decree of divorce vacated. The court, in refusing the relief sought, said: "It is apparent upon the face of the petition that plaintiff in error was in no way misled or deceived as to the nature of the original action. She was duly served with process of summons and a copy of the complaint, and had at her service able counsel to defend her interests. Thus advised and prepared she entered into a secret, collusive agreement with defendant in error, and for a promised consideration aided him by her silence to impose upon the court and procure a divorce. After the entry of the decree thus obtained she remained silent for more than one year, and only upon failure to realize the consideration promised for her shameless bargain did she apply for relief. She not only permitted the term at which the decree was rendered to pass, but also the six months additional allowed by statute for relief in certain instances, without advising the court of the fraud practised upon it and the law. To entitle her to relief had her petition been filed in apt time, it should have been made to appear affirmatively that she was then acting from good motives and not any expected personal advantage. It is apparent, however, from her petition, that she entertains no feelings of remorse for her base conduct, but is, on the contrary, actuated solely by a desire to obtain a money consideration for the fraud to which she was a party. Plaintiff, under these circumstances, is not in a position to demand. favorable action from the court."

In Singer v. Singer (1863) 41 Barb. (N. Y.) 139, the court refused to set aside a decree of divorce, although it was collusively obtained, where it ap

peared that the decree had been acquiesced in for a period of several years, and the former wife had remarried. The court said: "If the motion was properly made, and in due season, the court would order any judgment of divorce obtained by collusion or fraud to be set aside; not from any regard to the parties concerned, but from motives of public policy. In such a case, however, it should be made apparent that the party so moving was acting from good motives, and not for any expected personal advantage. But where the judgment of divorce has been acquiesced in for the period of several years, and the plaintiff has again been married, some better reason than the mere gratification of personal feeling, or the desire to obtain a further sum of money from the plaintiff, should be made clearly to appear, before the court would be warranted in granting such an application. As I have already said, the ground on which such an order could be made would be one of public policy, but no such reason should suffice where, after the acquiescence of both the parties in the judgment for three years, an innocent person has become involved by marriage, and the opening of the judgment would involve her in distress, and perhaps disgrace. This reason alone would be sufficient to justify me in denying the motion, if there were no other reasons for doing so, and leaving the parties to the consequences of their own acts and agreements, after the long delay that has taken place." See to the same effect, Nichols v. Nichols (1874) 25 N. J. Eq. 60.

In Carlisle v. Carlisle (1893) 96 Mich. 128, 55 N. W. 673, a similar decision was rendered, it appearing that four years had elapsed since a collusive decree of divorce, and the plaintiff had remarried in the meantime.

In Johnson v. Johnson (1913) 182 Ala. 376, 62 So. 706, the court refused to disturb a collusive decree at the suit of a divorced wife. It appeared that it had been acquiesced in for nearly three years and the husband had died. The court said: "And now,