The only question involved on this appeal is whether the consent judgment and separation agreement made between plaintiff and defendant is a bar to plaintiff’s action under O. S., 1666. We think so.

A separation agreement between husband and wife must be fair and reasonable and entered into without coercion or undue influence. Separation agreements are not favored by law, but under certain circumstances are recognized by statutes when signed in conformity thereto. C. S., 2515, 2516, 2529; Taylor v. Taylor, 197 N. C., 197, 148 S. E., 171.

The terms of a separation agreement between husband and wife were enforced in Peeler v. Peeler, 202 N. C., 123. One of the provisions in this separation agreement between plaintiff and defendant is clearly stated as follows: “The said E. A. Brown and Mary Belle Brown do mutually agree to live separate and apart from one another, and in consideration of the said conveyance of real estate, to her, the said Mary Belle Brown agrees and by these presents does agree to release and relinquish all right of support, all right of dower, and all other personal and property rights which she might have acquired, against the person or property of the said E. A. Brown .by virtue of the aforesaid marriage, and she does further agree to abandon, relinquish, and release the said E. A. Brown of all and every right of suit that she might have against him by reason of any act of abandonment that he might have committed in the past, and further agrees to release him of any claim which she might have against him by reason of the aforesaid marriage.”

Defendant has fully performed his part o'f the separation agreement with plaintiff and consent judgment. Plaintiff received certain property on the distinct agreement that it was to release and relinquish all right of support she had by virtue of her marital rights with defendant. She was sui juris when she consented to the judgment and made the agreement — no fraud or mistake is alleged on her part. We think that she is estopped by the judgment and agreement.

We do not think Bailey v. Bailey, 127 N. C., 474, applicable. At p. 475, it is said: “No separation is hinted at, even, and the matter seems to have been purely a business transaction in reference to the property owned by each of the parties to the instrument.” The agreement did not indicate that the parties were living separate and apart, and the language did not in clear terms, as the present “release and relinquish all right of support,” etc. In the Bailey case the parties were living together and expected to continue, and the husband to support his wife.

The court below set forth in the judgment: “After due inquiry the court being of the opinion that 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 plaintiffs,” etc.

*70The court below also stated in the judgment: “The action is allowed to remain on the calendar o£ the Orange Superior Court for the determination of the question of divorce sued for in said complaint, and for this purpose only.” This action is also for divorce a mensa ei ihoro under C. S., 1660, and it is retained for that purpose. Lentz v. Lentz, 193 N. C., 742. See Sanders v. Sanders, 167 N. C., 317; Archbell v. Archbell, 158 N. C., 408. The judgment of the court below is

Affirmed.

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.

*71Several 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 *72money 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.

concurring: The major point in the case is whether the trial judge had the power to make the requested allowances to the plaintiff. Obviously, an allowance to a wife by whatever name called, is payable from the estate or earnings of the husband, and necessarily affects a property right. It appears from the record that the husband and wife entered into an agreement with the approval and sanction of a ’court of justice whereby the parties should live “separate and apart from the other independent of the other to the same extent as if they had never been married, and each shall in the future contract and be contracted with independent of the other to the full extent as if they had never been married.” It is further agreed that the wife “does hereby receive and accept the aforesaid deed in full settlement and satisfaction of all and every right that she may hold against the person or estate of said E. A. Brown in consequence of the aforesaid marriage.” The right to support grows out of the marital status and is personal to the wife. In other words-, if the wife does not seek support in accordance with the provisions of the statute, no one else has any standing in court to speak for her or to enforce her rights in that particular. Public policy recognizes the right of a wife to contract with her husband with reference to mutual property rights or with reference to separation agreements based upon a mutual release of property rights. If the right of alimony and counsel fees is a property right, growing out of marriage, and the wife has the power to contract and does contract with reference thereto, with the approval and sanction of a court, then it would seem that a judge had no discretion in the matter. Discretion exists only when a matter is open for negotiation and not precluded by a provision of the law or a valid agreement of the parties. Consequently, I am of the opinion that the trial judge had neither the power nor the discretion to dip his hand into a pocket which was protected by a valid contract of a person under no disability and under the solemn sanction of the judgment of a court of competent jurisdiction.

I concur in the dissenting opinion filed by Stacy, C. J., in this appeal.

The duty, both legal and moral, of a husband to support his wife does not arise out of contract, nor is the right of the wife to support by her husband contractual in its origin. Both the right and the duty arise out of and are incidents of their marital status. Therefore, neither the right nor the duty are subject to contract between the husband and wife, by which the wife is deprived of her right or the husband relieved of his duty. The power of a court in a proper case to order the husband to provide reasonable subsistence for his wife, pendente lite, and to pay her counsel fees, in accordance with statutory regulations, is not affected by the provisions of a separation agreement between the husband and wife. The State as a social agency is interested that the wife shall not be deprived of her right or the husband relieved of his duty.

I think there was error in the order in the instant case, denying the application of the plaintiff as a matter of law.