The opinion
Stacy, C. J.,
dissenting: This is a civil action for divorce a mensa el Ihoro under C. S., 1660, with application for alimony pendente lite under C. S., 1666.
*71 Several years prior to tbo bringing of the present action, plaintiff instituted suit against the defendant' for subsistence without divorce under the provisions of O. S., 1667. Pending final determination of said action, plaintiff and defendant executed a separation agreement, in which, among other things, it was provided that certain real estate should be conveyed to the plaintiff out of which she was to care for herself and two minor children, and both husband and wife reciprocally undertook to release each other from any and all property rights, personal obligations and liabilities of any and every kind, which had arisen, or might thereafter arise, out of, or on account of, their said marriage. The defendant has complied with his part of the contract.
This agreement was filed as a consent judgment in the case, which judgment further recites that after due inquiry, the court is of opinion "the division of the property as set out in the separation agreement is a fair and equitable one and not in any way injurious to the plaintiff.”
Upon application for alimony pendente lite in the instant suit, the aforesaid judgment was held to be an estoppel or a bar to plaintiff's right to alimony pendente lite and reasonable counsel fees in the present proceeding. The cause was retained for a trial on the allegations looking to a divorce.
Articles of separation between husband and wife were originally regarded as unenforceable in the courts, because contrary to public policy (Collins v. Collins, 62 N. C., 153 ) ; later they were thought to rest on tenuous ground (Sparks v. Sparks, 94 N. C., 527 ); but with subsequent changes in the statute law, they were upheld where the separation had already taken place or immediately followed (Archbell v. Archbell, 158 N. C., 408 , 74 S. E., 327 ; Moore v. Moore, 185 N. C., 332 , 117 S. E., 12 ) ; and, finally, in Lentz v. Lentz, 193 N. C., 742 , 138 S. E., 12 , a husband was required to abide the terms of his agreement even after divorce. See, also, S. v. Gossett, 203 N. C., 641 , and Taylor v. Taylor, 197 N. C., 197, 148 S. E., 171 .
Conceding that the language of the instant agreement is broad enough to cover property rights, personal obligations and liabilities of any and every kind arising out of the marriage status, still it does not follow, as being within the contemplation of the parties, that, in case of subsequent action for divorce, any matter of law or judicial discretion arising therein should be regarded as covered by said agreement. Davidson v. Davidson, 189 N. C., 625 , 127 S. E., 682 . Undoubtedly, the judge might take the separation agreement into account in passing upon the plaintiff’s application, but it is not considered as an estoppel, or a bar, to her right to make the application.
That, articles of separation and a division of property do not bar the wife’s claim against her husband for temporary alimony or suit *72 money in an action for divorce, where she has not sufficient means, is the holding in Miller v. Miller, 1 N. J. Eq., 386, Wilson v. Wilson, 40 Iowa, 232 , Killiam v. Killiann, 25 Ga., 186 , Coles v. Coles, 2 Md. Ch., 341 , and Campbell v. Campbell, 73 Iowa, 482 . See, also, valuable note, 83 Am. St. Rep., 859 , et seq.