Lockwood v. Nelson

CHILTON, J. By the ante-nuptial contract entered into between Thomas M. Nelson and Anna M. Nelson, then Anna M. Carnes, it was agreed, that the said Thomas M. should have the property of which his said intended wife was then possessed, amounting in value to - twenty thousand dollars, and that in consideration of that, and in lieu of the dower of his said intended wife, he covenanted “ to settle and charge his estate in the sum of twenty thousand dollars, for the benefit of the said Anna M. — being a sum deemed equivalent to her fortune.” The deed further provides “ that -the said Thomas M. Nelson doth by these presents grant and settle on the said Anna Matilda Carnes out of his estate, the sum of twenty [300] thousand dollars in lieu of dower, and of the property received through her, for her own proper use and benfit, free from any liabilities of the said Thomas M. Nelson.” This deed was executed the 19th December 1838. The proof shows that the marriage contemplated by the deed, was afterwards solemnized between the parties,• and that the said Thos. M. actually received property to the value of twenty thousand dollars from his wife upon the marriage. The manifest intention of the parties to this instrument was, that the husband should settle upon the wife, to her sole and separate use, the sum therein specified, and not having paid the money before the consummation of the marriage, it is very clear that a court of equity would hold him as a trustee for his wife, and chargeable with that sum as for her separate estate. Atherly on Marriage Settlements, 90 et seq. He was in fact her debtor, and was under both a moral and legal obligation to comply with the terms of the contract, upon the faith of which, it is fair to presume, the wife was, at least in part, influenced to enter into the marital relation. There was then no valid objection to securing by the husband, after the coverture, the debt thus due by a conveyance of property to a trustee for her benfit, as was done by the deed of 22d September 1846 to William N. Nelson, the claimant. This deed was not therefore voluntary, as is assumed in the first charge asked to be given by the Circuit Court to the jury on behalf of the plaintiff in error. The security was but a means of consummating the settlement — 5 Ves. 275. The rule is too well settled to admit of discussion, that if a party do that which a court of equity would compel him to do, the court will hold it good. And the authorities to which we are cited by the counsel for the defendant in error establish beyond doubt, that a court of equity would enforce the wife’s right to the settlement provided for by the ante-nuptial contract. The wife in this case has but an equitable interest, the legal title being vested in the trustee, but her equity is a sufficient consideration to support the deed. 2. The charge of the court, that if the jury believed certain enumerated facts existed, they constituted the wife a bona fide creditor of the husband, we think is free from error, and cannot be regarded as withdrawing from the jury the considera [301] tion of the motive which prompted to the execution of the trust deed. The charge has reference to the consideration of the deed, and was given in lieu of one which was denied, and which assumed it to be voluntary. The questions raised below, were “ upon the construction of the deed,” and no question of fraud in fact was made by the charges asked, and hence none were concluded by the first charge given. 3. The remaining two charges which were prayed come directly within the influence of the principle several times decided by this court, and which must be considered as settled law, viz: that where a trust deed is executed for the security of creditors, and provides that the creditor should do or omit any thing whatever, the deed is revocable until the creditor assents to it; but where such is not the case — where the deed provides a security, without imposing any terms upon the creditor, or in any manner postponing the collection of his demand, the provision being manifestly for his benefit, the law implies his assent, and the deed is not revocable by the grantor. Elmes v. Sutherland, 7 Ala. Rep. 262; 4 ib. 374; Nelson, et al. v. Dunn, 15 Ala. Rep. 501. Applying the rule thus settled, to the case before us, it is very clear that the court did not err in refusing the two charges which assume, that the deeds of trust under which the claimant held the property required the assent of the cestui que trusts before the levy of the attachment, in order to render them valid. Neither of the deeds postpone the time of payment of the demands secured by them, and no condition whatever is imposed upon the creditor. They were then, upon their face beneficial to the creditors, and needed not their assent to give them vitality. The- charges given but affirm the law, as we have above laid it down, and were strictly correct. Havihg noticed all the points presented to the court- below, and being unable to discover any error, the judgment must be affirmed.