Fladung v. Rose

• Decision Date: 02 March 1882
• Parties: BERNHARD FLADUNG, BARBARA FLADUNG, and others, v. JOHN ROSE.
• Court: Maryland Court of Appeals

58 Md. 13

BERNHARD FLADUNG, BARBARA FLADUNG, and others, v. JOHN ROSE.

Court of Appeals of Maryland

March 2, 1882

APPEAL from the Circuit Court of Baltimore City.

The bill in this case was filed by the appellee against the appellants for the purpose of having certain deeds declared fraudulent, as intended to hinder and delay the creditors of Bernhard Fladung. The property sought to be affected by the proceeding, had, prior to the execution of the deeds assailed for fraud, been conveyed to Bernhard Fladung, and Barbara Fladung, his wife, for the purpose, as recited in the deed to them, "of creating a joint tenancy in Bernhard Fladung and Barbara Fladung," and the habendum in said deed was "to the said Bernhard Fladung, and Barbara Fladung, his wife, as joint tenants, and not as tenants in common, the survivor of them, and the heirs, personal representatives and assigns of such survivor." The Court below, (DOBBIN, J.,) passed a decree setting aside the deeds assailed for fraud, and directing the undivided interest of Bernhard Fladung as joint tenant in the property conveyed by said deeds, or so much thereof as might be necessary, to be sold for the payment of the complainant's claim, unless the same was paid by a day named in the decree.

The defendants appealed.

The cause was argued before BARTOL, C.J., GRASON, MILLER, ALVEY IRVING, and RITCHIE, J.

Frederick C. Cook, for the appellants.

The deed from Fladung and wife to Linberger, and the deed back from Linberger to them as "joint tenants and not as tenants in common," created in the grantors a tenancy by the entireties, and not a joint tenancy. 2 Cooley's Blackstone, *182 n. (6) and cases cited; Craft vs. Wilcox, 4 Gill, 505; Marburg vs. Cole, 49 Md., 402; Pollok vs. Kelley, 6 Irish Law R., N. S., 373; Green vs. King, 2 Wm. Blackstone, 1211; Johnson vs. Hart, 6 W. & S., 319; Dias & Burn vs. Glover, 1 Hoffm Ch., 76; Barber vs. Harris, 15 Wend., 617; Rogers vs. Grider, 1 Dana, ( Ky.,) 242; Stuckey vs. Keefe's Executors, 2 Casey, (26 Pa.,) 397; French vs. Mehan, 6 Smith, (Pa.,) 286.

One of the essential incidents of this estate by the entireties, is that the husband, by deed cannot, without joining the wife, divest her estate, and thus defeat her right of survivorship. Doe vs. Parratt, 5 Term Rep., 652; Wales vs. Coffin, 13 Allen, 213; Ketchum vs. Walsworth, 5 Wisc., 95; Fairchild vs. Chastelleux, 1 Barr, 180-1.

The reason of this being that they hold per tout et non per my, so that each is seized in severalty of the whole estate, they being treated " quasi unica persona. " The character of the tenure of each may be thus expressed, ' quilbet totum tenet et nihil tenet; scilicit totum in communi et nihil separatum per se." Bracton, lib. 5, tr. 5, c. 26; Jackson vs. Stevens, 16 Johns., 110; Jackson vs. Cairns, 20 Johns., 303.

And as the husband cannot by his voluntary act or deed so far affect the wife's estate as to divest her right of survivorship, it follows that his creditors cannot, by proceedings in invitum, do what he cannot do voluntarily. Beaumont's Case, 9 Co. Rep., 140; Rogers vs. Grider, 1 Dana, 242; Roanes vs. Archer, 4 Leigh, 550.

There are cases, however, that hold that the husband has absolute control of the estate during his life, and can convey and mortgage it during that period. Barber vs. Harris, 15 Wend., 615; French vs. Meehan, 56 Pa. St., 286. And that his life interest may be subjected to execution by his creditor. Jackson vs. McConnell, 19 Wend., 175; French vs. Meehan, 51 Pa. St., 286; Brown vs. Gale, 5 N. Hamp., 416; Ames vs. Norman, 4 Sneed, (Tenn.,) 683; Washburn vs. Burns, 34 N. J. Law, 19; Bennett and Wife vs. Child, 19 Wisc., 362.

This limit to the power of the husband and the husband's creditors, is there clearly confined to the duration of the husband's life; but the theory of the law upon which this limited power must be sustained, is that the husband at common law was jure mariti entitled to a life estate as tenant by the curtesy in the wife's freehold estate, and entitled absolutely to her personal estate, which interests were extendible under an execution against the husband alone. This, however, is not now the law of Maryland, which will not allow such interest to be extended during the life of the wife. Anderson, &c. vs. Tydings, &c., 8 Md., 427; Logan vs. McGill and Wife, 8 Md., 461; Schindel vs. Schindel, 12 Md., 294; Bridges & Woods vs. McKenna, 14 Md., 266; Weems vs. Weems, 19 Md., 345; Rice vs. Hoffman, 35 Md., 344; Hoffman vs. Rice, 38 Md., 285.

In the case of Marburg vs. Cole, 49 Md., 402, this Court has said, that Art. 45, secs. 1 and 2, of the Code of 1860, do not " at all affect the nature of the estate conveyed to husband and wife by deed to them jointly. " But the authorities cited by the Court and commended as decisions, "based upon principle and reason, entirely satisfactory and conclusive," establish the proposition that though the nature of the estate conveyed is not affected by the married women's acts, its mode of enjoyment is materially affected. Diver vs. Diver, 56 Pa. St., 106; McCurdy, &c. vs. Canning, 64 Pa. St., 39; Davis vs. Clark, 26 Ind., 424; Chandler vs. Cheney, 37 Ind., 391.

From these propositions it must follow that in the State of Maryland, neither the husband nor his creditors can, during the life-time of the wife, in any manner affect the interest of the husband in lands deeded to husband and wife jointly. Thomas vs. DeBaum, 1 McCarter Ch., 37; McDermott vs. French, 2 McCarter Ch., 78; Jackson vs. McConnell, 19 Wend., 175; Chandler vs. Cheney, 37 Ind., 391.

Now, if the appellants' contention be true, the complainant is necessarily seeking by his bill for relief that the Court cannot afford. Because Courts of equity in setting aside deeds as fraudulent against creditors, under Stat. 13 Eliz., ch. 5, are obliged to construe those deeds as to such creditors " to be clearly and utterly void. " The deeds set aside, are indeed, for many purposes valid-- ex gr. as between the parties thereto, and all persons claiming under them. But as to the creditors of the grantor, the theory of the law, which is enforced in practice by the Courts, being that title never passed out of the fraudulent grantor, and it is therefore only his interest that can be sold to satisfy such creditors. Stewart vs. Iglehart, 7 G. & J., 132; Farrow vs. Teackle, 4 H. & J., 271; Pratt vs. Wheeler, 6 Gray, 522, 3; Adams vs. Foster, 20 Johns., 451.

And this theory of the law has been recognized in this case by the decree passed by the Court below, whereby the interest of Bernhard Fladung only is ordered to be sold, and which the Court erroneously characterizes as "his undivided interest as joint tenant in said property."

[Argument on other points omitted. REP.]

Charles Marshall, for the appellee.

The point of the appellants, is founded on an erroneous interpretation of the decision of this Court in Marburg, et al. vs. Cole, 49 Md., 402. That case only decides that a deed to a husband and wife jointly, not as joint tenants, is not affected by the Act of 1822, ch. 162, Art. 49, sec. 12, of the Code. It certainly does not decide, that with the enlarged powers of a married woman to take and hold property in Maryland, she may not be made a joint tenant with her husband by a deed containing apt words to pass such an estate. This, was effected by the two deeds from Fladung and wife to Linberger, and from the latter to the former.

The estate conveyed by deeds consisted of one parcel belonging to Mrs. Fladung, and all the rest to her husband.

It was the object of the fraudulent transactions impeached by this bill, to secure the husband's interest from his creditors. He had the interest of a joint tenant in all the property, and it was liable for his debts.

MILLER J., delivered the opinion of the Court.

On the 5th of February, 1874, Bernhard Fladung, for the alleged consideration of $3500, conveyed all his property to his wife Barbara Fladung. In October, 1875, he and his wife conveyed the property to one Hauser for the consideration of $4000, and a few days thereafter Hauser conveyed the same to one Rost for the alleged consideration of $4500. In May, 1876, Rost, by three deeds, the aggregate considerations of which amounted to $8000, conveyed the same property to Mrs. Fladung, and on the 16th of August following, she and her husband conveyed the same to the latter in trust for the wife for life, and upon her death in trust for their three children. It thus appears that the property was transferred first from the husband to the wife, and eventually back to the husband in trust for his wife and children. That these several conveyances were each and all of them contrived and executed for the purpose of hindering, delaying and defrauding the husband's creditors admits of no reasonable doubt. He was not only largely indebted at the time, but the several considerations expressed in the deeds are all admitted or proved to have been fictitious and false, and during the whole period he remained as he was before, in possession of all the property, receiving the rents and income therefrom to his own use.

It is said, however, the appellee has no right to assail these conveyances, because his bill does not aver that Fladung was indebted to him when the first of them was executed. It is true the bill charges that Fladung became and was indebted to Rose, the complainant, on the note sued on in the City Court, which appears to bear date the 2nd of April 1874, about two months after the date of the first deed, and if this were the only averment of indebtedness contained in the bill, there would be force in this objection to it. But it further distinctly charges "that the said conveyances were fraudulently made, not bona fide, for...