Arbesman v. Winer
Decision Date | 29 December 1983 |
Docket Number | No. 36,36 |
Citation | 298 Md. 282,468 A.2d 633 |
Parties | Fannie S. ARBESMAN v. Ephraim WINER. Sept. Term 1983. |
Court | Maryland Court of Appeals |
Leslie L. Gladstone, Baltimore, for appellant.
K. Donald Proctor, Towson (Miles & Stockbridge, Towson, on the brief), for appellee.
Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.
We shall hold that in the unique circumstances of this case, where a husband and wife owned land as tenants by the entireties and only the husband gave notice of termination of the tenancy to a tenant at will, an action for repossession of the premises may not be maintained.
Appellee Ephraim Winer and his wife, Ray Winer, own land in Baltimore County as tenants by the entireties. From 1935 to 1948, 1960 to 1964, and 1966 to the present, appellant Fannie Arbesman has lived with the Winers in their home. She has had her own room and the only set of keys to the doors leading into that room. Aside from the fact that Ray Winer kept some private papers there, no one other than Mrs. Arbesman used the room. Mrs. Arbesman has never been requested to pay, nor has she paid, any rent. In recent years she has assisted and cared for her sister, Ray Winer, who has been in poor health.
It seems that on February 17, 1983, Ephraim Winer told his wife that either Fannie Arbesman would have to vacate the residence or he would not return to the home himself. The wife refused to require her sister to leave. The husband left the home and then proceeded to give Fannie Arbesman one month's notice to quit the premises pursuant to Md.Code (1974, 1981 Repl.Vol., 1982 Cum.Supp.) § 8-402(b)(1), Real Property Article. Mrs. Arbesman did not remove herself from the residence. Ephraim Winer then filed suit in the District Court of Maryland to repossess the premises. Despite Mrs. Arbesman's claim that the wife was a necessary party, the District Court judge determined that the husband could properly maintain the action. He granted restitution of possession of the premises. Mrs. Arbesman appealed to the Circuit Court for Baltimore County.
In the circuit court Mrs. Arbesman filed a motion raising preliminary objection. She contended, among other things, that the suit must be dismissed because the wife was not a party. The wife appeared and testified on that motion. She said that at no time had she agreed to have her sister leave the premises and that she wished her sister to remain there. She further stated that, although she and her husband were not speaking to each other at that time, "[h]e knows, he is aware of the fact that I want her and need her." The circuit court in a de novo trial affirmed the judgment of the District Court. The trial judge noted that Mrs. Arbesman was a tenant at will and Ray Winer was not a necessary party to the action. He reasoned that although tenancy by the entireties property may be leased only by the joint act of husband and wife, the law of property does not require both of them to join in the giving of notice to a tenant at will to quit the premises. He said:
We granted Mrs. Arbesman's petition for writ of certiorari in order that we might address the important public issue here presented.
Mrs. Arbesman argues that she is not a tenant at will but a lodger or boarder and, thus, that her occupancy of the premises may not be terminated in the manner sought to be done here. In the view we take of this case we find it unnecessary to decide such an issue. We shall assume arguendo that she is in fact a tenant at will.
At common law the husband had control of the property held by the spouses as tenants by the entireties, subject only to the wife's right of survivorship. Thus he alone was entitled to all rents and profits arising from the entireties property during the marriage. See Schilbach v. Schilbach, 171 Md. 405, 408, 189 A. 432 (1937); Masterman v. Masterman, 129 Md. 167, 174, 98 A. 537 (1916). In order that the whole could remain for the surviving spouse, however, neither spouse could dispose of the property, lease it, or subject it to any lien or encumbrance absent the consent of the other spouse. See Columbian Carbon Co. v. Kight, 207 Md. 203, 206, 114 A.2d 28 (1955); Marburg v. Cole, 49 Md. 402, 411 (1878).
In the latter part of the last century, many state legislatures passed married women's property acts. Maryland was no exception. The purpose of these acts was to permit married women, in derogation of the common law, to acquire and hold property for their own use. See Columbian Carbon Co., 207 Md. at 208, 114 A.2d 28; Marburg, 49 Md. at 412-13. Judge Delaplaine pointed out for the Court in Columbian Carbon Co., "This Court has taken the view that the Married Women's Property Acts were passed by the Legislature to protect the wife's property from the control of the husband, but not to change the nature of her estate." 207 Md. at 208, 114 A.2d 28.
In Marburg, 49 Md. 402, Judge Alvey said for the Court:
Accord McCubbin v. Stanford, 85 Md. 378, 390, 37 A. 214 (1897). See Annot., 30 L.R.A. 305 (1895). In Marburg the Court held that Ch. 162 of the Acts of 1822, now codified as § 2-117, Real Property Article, which provided that no deed, devise, or other instrument of writing should be construed to create an estate of joint tenancy unless so expressly provided, did not affect or apply to such an estate as was conveyed to husband and wife. 49 Md. at 412. It further held that the provisions of §§ 1 and 2 of Art. 45 of the Code of 1860, which authorized a married woman to acquire and hold property as therein provided to her separate use, did not at all affect the nature of the estate conveyed to husband and wife by deed to them jointly. Id. at 412-13.
Because the husband's right to rents, profits, and income from the property derived from the common law marital rights and not from the marital estate itself, the married women's property acts did affect this aspect of the tenancy by the entireties estate. See Schilbach, 171 Md. at 408, 189 A. 432; Masterman, 129 Md. at 174, 98 A. 537. The wife, therefore, was deemed to have an equal right to the rents, profits, and income derived from the property. See Wardrop v. Wardrop, 211 Md. 14, 22, 124 A.2d 576 (1956); Columbian Carbon Co., 207 Md. at 209, 114 A.2d 28; Brown v. Brown, 204 Md. 197, 212, 103 A.2d 856 (1954); Elko v. Elko, 187 Md. 161, 168, 49 A.2d 441 (1946); Annapolis Banking & Trust Co. v. Neilson, 164 Md. 8, 13-14, 164 A. 157 (1933).
Recent cases of this Court have demonstrated the continued validity and vitality of the tenancy by the entireties estate in Maryland. For example, in Picking v. Yates, 265 Md. 1, 288 A.2d 146 (1972), the Court said 265 Md. at 2-3, 288 A.2d 146.
In State v. Friedman, 283 Md. 701, 393 A.2d 1356 (1978), Judge Digges said for the Court:
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