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BRODNAX V. AETNA INS. CO., 128 U. S. 236 (1888)

U.S. Supreme Court

Brodnax v. Aetna Ins. Co., 128 U.S. 236 (1888)

Brodnax v. Aetna Insurance Company

No. 61

Argued November 1, 1888

Decided November 19, 1888

128 U.S. 236


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

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