Sanborn

The parties herein, formerly husband and wife, executed an agreement authorized by sections 158 and 159 of the Civil Code wherein provision was made for monthly payments by appellant to respondent in a specified sum for support, and wherein it was agreed that the obligation to make such payments “is secured by a lien upon the income” of certain real property owned by appellant, and that “the rents, issues and profits therefrom are charged and impressed with the payment of the amounts hereinbefore provided to be paid”. Upon this contract respondent brought suit to recover alleged arrearages. A general demurrer was interposed and overruled. Appellant in his answer pleaded lack of consideration, illegality of the agreement by reason of a contemporaneous oral promise of respondent to obtain a divorce as consideration for execution thereof by appellant, and res judicata by reason of subsequent divorce proceedings. Judgment was entered for respondent from which this appeal is taken.

The general demurrer was properly overruled. The agreement was incorporated in the complaint by reference, and appellant contends that the complaint therefore revealed that the agreement sued upon…