The provision in § 1183 of the Code of Georgia (ed. 1882), that
"the wife is a
feme sole as to her separate estate unless
controlled by the settlement," and that
"while the wife may contract, she cannot bind her separate
estate by . . . any assumption of the debts of her husband, and any
sale of her separate estate made to a creditor of her husband in
extinguishment of his debt shall also be void"
does not apply to a settlement made upon her by the husband, by
deed of trust conveying the property to a trustee free from the
debts and liabilities of the husband, and providing that whenever
the husband and the wife shall by written request so direct, the
trustee shall execute mortgages of the property, and does not
invalidate an otherwise valid mortgage, executed by the trustee, on
such written request in order to secure a debt due from the
husband.
This was an appeal from a decree for the foreclosure of two
mortgages.
The facts were briefly these:
June 11th, 166, Benjamin H. Brodnax, being the owner of certain
real estate situated in Richmond County, Georgia, executed and
delivered to his father, William E. Brodnax, a deed thereof in due
form in consideration of his affection for his wife, Martha
Brodnax, and his duty to suitably provide "further sustenance and
support," in trust to hold the same for the use and benefit of said
Martha during her life,
"free from the debts, contracts and liabilities of her present
or any future husband (except such encumbrances or liens as by the
written directions of myself [himself] and the said Martha may be
made thereon),"
upon her death to be reconveyed to said Benjamin if he survived
her, but if not, then to such person as she might appoint, and in
case of her failure to appoint, to his heirs. Upon the written
request of said Martha and Benjamin, the trustee might sell and
convey, the proceeds to be reinvested in property to
Page 128 U. S. 237
be held upon the same trusts, the purchaser not to be held
responsible for the application of the purchase money.
The trustee was also authorized, whenever Brodnax and his wife
should by written request so direct, to execute mortgages, liens,
or other encumbrances upon the property for such sum or sums as
they should in writing express, the mortgagees not to be
responsible for the proper application of the mortgage money or
"hindered in any manner from enforcing the lien or liens of said
mortgages."
In case of the death of William E. Brodnax, the trustee, or of
his disability or unwillingness to execute the powers and duties of
the trust, the grantor and his wife were given power to appoint a
successor.
On June 14th, 1866, three days after the date of the deed, the
trustee, in pursuance of the written request of the grantor and
wife, executed a mortgage of the premises to the treasurer of the
Soldiers' Loan and Building Association, to secure a loan of
$2,000. This mortgage was accompanied by a release signed by Mrs.
Brodnax, acknowledging the receipt of five dollars and the advance
of two thousand dollars to her husband and herself, and in
consideration thereof releasing all right "to dower and twelve
months' support in, to, and from the above mortgaged premises, the
above deed of mortgage having first been read over and explained to
me."
May 11th, 1867, the trustee, in pursuance of the written
direction of Mr. and Mrs. Brodnax, provided for in the deed,
executed another mortgage to the Aetna Insurance Company for
$3,193.20, evidenced by a note for that sum to said company signed
by the trustee.
W. A. Brodnax, the trustee, resigned the trust January 2d, 1868,
and said Benjamin H. and his wife appointed, in writing, Ephraim
Tweedy as successor in trust, who accepted the appointment and
trust January 3d.
The first mortgage to the Soldiers' Loan Association was
assigned to the Aetna Insurance Company December 4th, 1868.
February 14th, 1869, Mrs. Brodnax obtained a decree of divorce
a vinculo from said Benjamin H., and as alimony all his
right, title and interest in said mortgaged property.
Page 128 U. S. 238
The Aetna Insurance Company filed its bill to foreclose November
18th, 1878, against Martha Brodnax, to which Tweedy, the trustee,
was subsequently made a party, and which alleged that Brodnax left
the jurisdiction in 1869 and complainant did not know where he was.
In her answer, Mrs. Brodnax denied that she received any of the
money the mortgages were given to secure; denied that Brodnax
received the $3,193.20, and said that was a sum alleged to be due
the company for money collected by Brodnax; as its agent, and
converted to his own use, and averred that when she gave the
written direction to the trustee to execute the second mortgage, it
was under the pressure of threats by the company to prosecute her
then husband criminally, and that the consideration of said
mortgage was forbearance to prosecute, and that on those grounds
the instrument was void. And she further insisted that both of said
mortgages were attempts to bind her separate estate for her
husband's debts, and therefore illegal.
The evidence tended to show that Mrs. Brodnax did not receive
the money secured by either of the mortgages; that the note held by
the Aetna was given for a balance due from Brodnax for premiums
collected by him as agent and not paid over; that Mrs. Brodnax's
brother, and perhaps her mother, told her that threats of criminal
prosecution had been made, but that the Aetna not only did not know
of such statements, but had never made threats of the kind to
Brodnax or anyone else, nor meditated, so far as appears, such
prosecution; that Mrs. Brodnax was advised, as to the mortgage to
the Etna, that her direction to the trustee to execute it must be
voluntary; that she took time to consider, and was then perfectly
willing to sign such direction; that she made no complaint of this
character until by her answer filed in May, 1879, and that she paid
several hundred dollars to the Etna on account from 1874 to 1877
inclusive. It also appeared that the Etna purchased and paid for
the first mortgage, to protect its own, in December, 1868.
A decree of foreclosure was entered, from which the defendants
appealed.
Page 128 U. S. 240
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
If Mrs. Brodnax had the power under the deed of June 11, 1866,
to direct the execution of the mortgages to secure her husband's
debts, then the decree must be affirmed.
The objections of counsel to the maintenance of the decree,
other than upon the question of power, do not appear to us to
require serious consideration.
As the evidence stands, no case of duress which could be availed
of was made out in respect to the mortgage to the insurance
company, nor is there any ground for the contention that the
company took the note in compounding a felony.
There was no issue in the case as to whether Brodnax was living
or not, and questions as to dower and the statutory support for a
decedent's widow did not arise. No evidence was adduced to
establish the death of Brodnax, and the averment of the bill in
reference to his absence was made
diverso intuitu, and not
with the view of setting up his death by way of presumption, and
seeking relief predicated thereon. Nor could the decree awarding
alimony in 1869 operate to defeat a decree of foreclosure upon
valid mortgages competently executed or directed to be executed by
her in 1866 and 1867. The real inquiry is whether, under the laws
of Georgia, Mrs. Brodnax could pledge the estate granted for her
husband's debts. The rule in Georgia prior to the adoption of the
Code as to the power of a married woman to dispose of her separate
estate is thus stated in
Dallas v. Heard, 32 Ga. 604:
"Whenever property is secured to a
feme covert to her
sole and separate use, without qualification, limitations, or
restrictions as to its use and enjoyment, she is to be regarded in
respect to such estate in all respects as a
feme sole, and
it is chargeable and bound for the payment of all debts contracted
by her that may be secured by promissory note, or other
Page 128 U. S. 241
undertaking in writing, to pay the same, whether said note is
given by her alone or jointly with others, she being the sole and
exclusive owner of the property, she holds it with all the
incidents of property -- the right of selling, giving, or charging
it with the payment of debts."
In
Clark v. Valentino, 41 Ga. 147, the court, approving
of the language just quoted, says, by Brown, C.J.:
"But it is insisted that this court has laid down a different
rule as to the ability of the wife to bind her separate estate for
the payment of the debts of her husband in
Kempton v.
Hallowell, 24 Ga. 52;
Hicks v. Johnston, 24 Ga. 194,
and in
Keaton v. Scott, 25 Ga. 625. I think not. In all
these cases, the property was given and secured to the wife by deed
or will, and it was expressly provided in the instrument that it
should in no case be subject to the debts of the husband, and the
court held that her power of alienation was restricted by the donor
in the instrument by which she acquired it, and that she could not
on that account bind it for the payment of her husband's debt, that
being the very thing to which the restriction related. This
amounts, however, only to an exception to the general rule, and is
not the rule itself. The rule is that the
feme covert is a
feme sole as to her separate estate, with full power of
alienation or disposition at her pleasure. The exception is that if
the donor has restricted the power of alienation or disposition,
she is bound by such restriction, and cannot directly or indirectly
alienate or bind it in violation of the restriction placed upon it
by the donor."
The designation of a particular mode in the gift or settlement
might preclude the adoption of any other.
Wylly v.
Collins, 9 Ga. 223;
Weeks v. Sego, 9 Ga. 201, but
unless restrained or fettered by the instrument in which her estate
originated, she had the absolute power of disposition.
Fears v.
Brooks, 12 Ga. 195. Of course, she could make such disposition
for such object and in such way as was expressly authorized.
The code was adopted in 1863, and § 1773 of the edition of 1867,
§ 1783 of the edition of 1882, provides as follows:
"The
Page 128 U. S. 242
wife is a
feme sole as to her separate estate unless
controlled by the settlement. Every restriction upon her power in
it must be complied with, but while the wife may contract, she
cannot bind her separate estate by any contract of suretyship nor
by any assumption of the debts of her husband, and any sale of her
separate estate, made to a creditor of her husband in
extinguishment of his debts shall be absolutely void."
While before this enactment a married woman could bind her
separate estate for her husband's debts if she held the same free
from restriction, the statute rendered that no longer possible by
imposing a restriction where none existed. But if an instrument
settling property upon a married woman provides that she may pledge
it for her husband's debts, there is nothing in the statute to
prevent her from so doing.
It is not wrong in itself for a wife, of her own free will, to
devote her separate property to the relief of her husband.
Obedience to the dictates of duty, or even yielding to the impulses
of affection, has in itself no tendency to impair the happiness of
the family, but the contrary.
As remarked in
Sutton v. Aiken, 62 Ga. 741:
"It is evident that it is not wicked or immoral for a wife to
pay her husband's debts, nor has the general public an interest in
her abstaining from so doing. The restraint imposed upon her by the
law is solely for her benefit and wellbeing. The rule is
economical, not moral, and its policy is in favor of a class, and
not of the public at large. True, the class is a numerous and
important one, but married women cannot be said to constitute the
public. The public justice, police, order, safety, revenue, health,
religion, or morality is not involved in preventing wives from
devoting their property to the payment of their husbands'
debts."
Hence, while the state has seen fit to impose a restriction
where the instrument of gift is silent or the wife otherwise holds
by an unqualified ownership, it does not follow that the statute
can be extended upon grounds of general public policy to destroy a
power expressly bestowed, and render property inalienable which the
donor granted upon condition that it might be conveyed as
specified. It is not be assumed that
Page 128 U. S. 243
the state intended to discourage gifts to or settlements upon
married women by making it impossible for those who wish to give,
to effectuate their intentions in respect to the terms on which the
property should be held and disposed of.
The wife is "controlled by the settlement" not only as to
compliance with "every restriction upon her power," but also as to
every provision therein which enables her to act as prescribed,
notwithstanding, except for such provision, she could not under the
statute do that which as a
feme sole she might do. The
wife cannot bind her separate estate "by any assumption of the
debts of her husband," but the separate estate which she cannot
thus bind is estate so settled to her sole and separate use as to
be controlled without the concurrence of her husband, and where, by
the terms of the instrument, his concurrence is essential to
whatever is done, it is not so situated as to come within the
intent and meaning of the statute.
The property in question belonged to Brodnax. He conveyed it to
a trustee by an instrument which required his assent to any sale or
mortgage, and provided that the property should be held free from
his debts, contracts, and liabilities, except such encumbrances or
liens as might be made thereon at the written direction of himself
and his wife. Under such circumstances, the statute cannot be
availed of to invalidate these mortgages, and this disposes of the
case, for the mortgages were, in our judgment, such encumbrances as
Mrs. Brodnax had the power to direct jointly with her husband to be
created.
The meaning of the clause of the deed bearing on this subject is
that while the property was to be free from the contracts, debts,
and liabilities of the husband, it might be specially subjected to
encumbrance to secure some of his debts, upon the written agreement
of both husband and wife to that effect. This exception cannot be
rejected as inconsistent with the previous provision, for it does
not go to destroy it. In the particular instances in which she
might choose to join with Brodnax in doing what he had not reserved
the legal right to demand, debts might be made a charge upon the
property
Page 128 U. S. 244
which was otherwise to be held free from all his debts. And in
this view, it does not matter whether the debt secured was past due
or not.
The decree of the circuit court will therefore be
affirmed.
