Ades v. Caplan
| Decision Date | 16 January 1918 |
| Docket Number | 38. |
| Citation | 103 A. 94,132 Md. 66 |
| Parties | ADES v. CAPLAN et ux. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court No. 2 of Baltimore City; Henry Duffy Judge.
Suits by Harry M. Caplan and wife against Harry Ades, trading as Ades Bros. From a decree enjoining defendant from selling property under execution, defendant appeals. Affirmed.
Benjamin B. Baker, of Baltimore, for appellant.
Eugene Frederick and Francis E. Pegram, both of Baltimore, for appellees.
On the 23d day of August, 1915, the appellant recovered a judgment in the Baltimore city court against the appellees, Harry M Caplan and Annie E. Caplan, his wife, for the sum of $151.88. At the time of the recovery of said judgment the appellees were the owners, as tenants by the entirety, of leasehold property, situated on Asquith street, in the city of Baltimore.
On the 16th day of September, 1915, within four months from the entry of said judgment, an involuntary petition in bankruptcy was filed in the District Court of the United States for the District of Maryland, against the appellee Harry M. Caplan by certain of his creditors, and on the same day he was adjudicated a bankrupt. He thereafter submitted an offer of composition to his creditors, which was agreed to by a majority of them, both in number and amount. The composition was thereafter finally ratified and confirmed, and the bankrupt discharged. The appellant filed his said claim in the bankrupt proceedings, and received thereon, as a general creditor of said bankrupt, a dividend amounting to $41.37.
On the 26th day of April, 1917, after the discharge of the bankrupt the appellant had a writ of fieri facias on said judgment issued out of the Baltimore city court, and caused the same to be levied on said property, and was proceeding to execute the writ when the appellees filed their bill in circuit court No. 2 of Baltimore city, asking that the appellant and Thomas F. McNulty, sheriff, to whom the writ had been issued, be restrained and enjoined from making sale of the property under said writ.
To this bill the appellant demurred, and the demurrer being overruled, and the appellant failing to answer within the time allowed him, a decree was passed restraining and enjoining the appellant and the sheriff from selling said property. It is from that decree that this appeal is taken.
It is the contention of the appellant that the act of Congress of 1898 and the amendments thereto, relating to bankruptcy, in no way affected the lien of his judgment against said leasehold property held by the appellees as tenants by the entireties, because of the peculiar characteristics of such an estate; although said judgment was entered within four months prior to the filing of the petition in bankruptcy against Harry M. Caplan, the husband, upon which he was subsequently adjudicated a bankrupt and thereafter discharged, and notwithstanding, too, that in such bankrupt proceedings a distribution was made of the bankrupt's estate in which the appellant participated, receiving as a general creditor a dividend upon his claim.
Bankr. Act 1898, § 67f, provides:
"That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudicated a bankrupt, and the property affected by the levy, judgment, attachment, or other lien shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the bankrupt estate."
Under the above statute the lien of the judgment recovered against the appellees within four months prior to the filing of the petition in bankruptcy against one of them became null and void, at least so far as the bankrupt was concerned, and it must be so held, unless there is something in the characteristics of an estate by the entirety that would require a different meaning to be given to the act. Tenants by the entireties are, in the contemplation of the common law, which is the law of this state but one person, and hence they take, not by moieties, but the entirety. They are each seised of the entirety, and the survivor takes the whole. Marburg v. Cole, 49 Md. 411, 33 Am. Rep. 266.
The nature of this estate forbids and prevents the sale or disposal of it, or any part of it, by the husband or wife without the assent of both; the whole must remain to the survivor. The husband...
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