Columbian Carbon Co. v. Kight

• Decision Date: 13 May 1955
• Docket Number: No. 127,127
• Parties: , 51 A.L.R.2d 1232 COLUMBIAN CARBON COMPANY, a corporation, v. Edward G. KIGHT and Maggie Kight, his wife, Evelyn Kight Warsaw, unmarried, and Ray Kight.
• Court: Maryland Court of Appeals

Page 203

207 Md. 203

114 A.2d 28, 51 A.L.R.2d 1232

COLUMBIAN CARBON COMPANY, a corporation, v. Edward G. KIGHT and Maggie Kight, his wife, Evelyn Kight

Warsaw, unmarried, and Ray Kight.

No. 127

Court of Appeals of Maryland.

May 13, 1955.

Lewis R. Jones, Oakland (Ernest Ray Jones, Oakland, on the brief), for appellant.

Walter C. Capper and Donald W. Mason, Cumberland, for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

Columbian Carbon Company, a Delaware corporation, entered this suit in the Circuit Court for Garrett County against Edward G. Kight and wife, Evelyn Kight Warsaw, divorced wife of Pierce H. Warsaw, and Ray Kight to obtain a decree declaring that an oil and gas lease of a tract of land, which complainant obtained from Warsaw while he was married, is valid and enforceable.

The bill of complaint contains the following allegations:

(1) In 1946 Pierce H. Warsaw and his wife acquired a tract of land of 113 1/3 acres in Garrett County as tenants by the entireties.

(2) On February 24, 1953, Warsaw, while married, executed alone a lease of the tract to complainant for exploration and production of oil and gas for a term of five years and as long thereafter as drilling operations for oil and gas might be conducted thereon. The lease, duly recorded on March 6, 1953, provides that if Warsaw owns less than the entire estate, the rentals and royalties should be paid to him in the proportion that his interest bears to the entire estate.

(3) On June 22, 1953, the Warsaws were divorced by the Circuit Court for Garrett County.

(4) In December, 1953, Warsaw and his divorced wife, Evelyn Kight Warsaw, conveyed the tract to Edward G. Kight; and in January, 1954, Edward G. Kight and his wife conveyed one-half interest in the tract to Evelyn Kight Warsaw.

(5) In July, 1954, Edward G. Kight and his wife and Evelyn Kight Warsaw leased the tract to Ray Kight.

Defendants demurred to the bill. The chancellor, holding that the lease was void, sustained the demurrer. Complainant appealed from the order sustaining the demurrer. An order of a court of equity sustaining a demurrer to an entire bill of complaint is not an interlocutory order but an order in the nature of a final decree, from which an appeal lies to the Court of Appeals, although no final order dismissing the bill is entered. Young v. Cockman, 182 Md. 246, 249, 34 A.2d 428, 149 A.L.R. 1006; Karger v. Stead, 192 Md. 230, 232, 64 A.2d 155; Tanner v. McKeldin, 202 Md. 569, 575, 97 A.2d 449.

Appellees filed a motion to dismiss the appeal on the ground that appellant did not print in the appendix to its brief a copy of the bill of complaint, a copy of the demurrer, a copy of the lease, and a copy of each deed mentioned in the bill. We find that the brief contains a sufficient statement of the facts to enable us to decide the questions at issue, and we do not think that printing of the documents was necessary in this case. We therefore overrule the motion to dismiss the appeal. Moreover, in view of the amendments of our Rules relating to Appeals, which became effective on April 1, 1955, an extended discussion of the matter would not serve any useful purpose as a guide for the future, and we trust that under the revised Rules similar questions will not recurrent.

Appellant contended that, although the lease was not executed by Mrs. Warsaw in February, 1953, when the tract was owned by the entireties, appellant was nevertheless entitled to Warsaw's interest after the Circuit Court granted the divorce in June, 1953.

It is an ancient doctrine of the common law that if an estate in fee is given to a man and his wife, they are neither joint tenants nor tenants in common, for, since husband and wife are considered in law as one person, they cannot take the estate by moieties, but both are seised of the entirety, and in consequence neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor. Blackstone's Commentaries, book 2, chap. 12, page 182.

Under the ancient theory of the common law, property held by the entireties was owned by both spouses, but it was actually in the control of the husband, subject only to the right of the wife to acquire it in case she survived her husband. The original theory is still held in some jurisdictions in the United States. It has been held in Massachusetts, for example, that in a tenancy by the entireties the husband's rights are paramount to the rights of his wife, and therefore during marriage the husband is entitled to possession and control of the premises together with all the rents and profits therefrom. Childs v. Childs, 293 Mass. 67, 199 N.E. 383; Franz v. Franz, 308 Mass. 262, 32 N.E.2d 205, 135 A.L.R. 1448.

This form of ownership, which originated when the husband was dominant, has undergone substantial changes in many parts of the United States. 'These changes,' according to Professor Powell, Reporter on Property for the American Law Institute, 'have been due partly to the increased independence of women, partly to the demands of creditors for increased access to the assets of their debtors, and partly to a movement for simplification in the law by the elimination of a category of ownership believed to be no longer sufficiently useful to justify its separate existence.' 4 Powell on Real Property, sec. 620.

In 27 States tenancies by the entireties have been abolished. Moreover, in most of the 21 States which still recognize these tenancies, the effect of the enactment of the Married Women's Property Acts has been to eliminate the husband's right to the income from the property thus owned. In Maine and Illinois the effect of these Acts has been to change the tenancy by entireties into the tenancy in common. In those States the courts have reasoned that since the tenancy by entireties was based upon the common-law fiction that the husband and wife are but one person, and since the Married Women's Property Acts abolished this legal unity in ownership of property, the reason for the common-law rule no longer exists. In re Robinson, 88 Me. 17, 33 A. 652, 30 L.R.A. 331; Mittel v. Karl, 133 Ill. 65, 24 N.E. 553, 8 L.R.A. 655.

In New York the tenancy by the entireties resembles the tenancy in common, except that there is a right of survivorship. In Hiles v. Fisher, 144 N.Y. 306, 39 N.E. 337, 30 L.R.A. 305, the New York Court of Appeals held that the common-law right of the husband to the entire usufruct of an estate by the entireties during the joint lives of the husband and wife is not an incident of that estate, but is a part of his common-law marital rights; and therefore the rents and profits belong to them in separate moieties, and the wife's share is within the statute giving married women power to control and dispose of their own property.

Accordingly it is now held by the great weight of authority in this country that a husband may make a lease of an estate owned by him and his wife as tenants by the entireties which will be valid against his wife during coverture and will fail only in the event that his wife survives him. Pray v. Stebbins, 141 Mass. 219, 4 N.E. 824, 827; Peter v. Sacker, 271 Mass. 383, 171 N.E. 485; Wyckoff v. Gardner, 20 N.J.L. 556, 45 Am.Dec. 388; Fairchild v. Chastelleux, 1 Pa. 176, 44 Am Dec. 117; Topping v. Sadler, 50 N.C. 357; Arrand v. Graham, 297 Mich. 559, 298 N.W. 281, 300 N.W. 16, 136 A.L.R. 1206; 4 Thompson on Real Property, Perm.Ed., sec. 1823.

Contrary to the weight of authority, Maryland still retains the tenancy by the entireties in the traditional form. In 1878 the Court of Appeals, speaking through Judge Alvey, held that the Maryland statute authorizing a married woman to acquire and hold property for her separate use did not affect the nature of an estate conveyed by deed to husband and wife jointly. Marburg v. Cole, 49 Md. 402, 33 Am.Rep. 266. 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.

In 1882 the Court admitted in Fladung v. Rose, 58 Md. 13, 24, that the legal unity of husband and wife, upon which the tenancy by the entireties was founded, no longer existed in Maryland as it existed at common law, and held that where the intention is manifest, and the proper words are employed to create a joint tenancy or a tenancy in common, husband and wife in this State are capable of holding either as joint tenants or tenants in common. In that case Judge Miller said:

'By our Code, all the property...