Jordan v. Reynolds

• Decision Date: 01 March 1907
• Citation: 66 A. 37,105 Md. 288
• Parties: JORDAN v. REYNOLDS et al.
• Court: Maryland Court of Appeals

66 A. 37

105 Md. 288

JORDAN v. REYNOLDS et al.

Court of Appeals of Maryland

March 1, 1907

Appeal from Circuit Court of Baltimore City; Alfred S. Niles, Judge.

Suit by George A. Reynolds and others against Charles V. Jordan. From a decree for plaintiffs, defendant appeals. Affirmed.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, and BURKE, JJ.

Edward A. Strauff and William C. Smith, for appellant.

Arthur L. Jackson, for appellees.

BRISCOE J.

It is admitted that the only question presented on the record in this case is whether a husband and wife, holding property as tenants by the entireties, can give to a purchaser of the property a good and merchantable title, as will enable them to enforce specific performance against the purchaser, free and clear of an outstanding judgment against the husband. In other words, whether the husband's interest in case of tenancy by the entirety can be subjected to the claims of his creditors during the life of the wife, and whether the right of execution is suspended during the life of the wife, but enforceable on her death.

The facts are undisputed, and the question arises upon a bill in equity, filed by the husband and wife against the purchaser asking for the specific performance of a contract of sale dated the 16th of October, 1906, for the purchase of certain leasehold property, situate in Baltimore City, held by the husband and wife, as tenants by entireties. The defendant by his answer admits the allegations of the bill to be true, but denies the relief asked by the bill, upon the ground that on the 24th day of June, 1903, a certain August Strauff obtained in the court of common pleas of Baltimore City a judgment against George A. Reynolds, one of the plaintiffs in the case, for the sum of $950, and this judgment is still unpaid and unsatisfied, that the judgment is a lien upon the property described in the contract of sale, and that the title to the property, in consequence thereof, is not good and marketable as the contract of sale required it to be. And for this reason he refused to pay the purchase price and accept a deed. The case was heard on bill, answer, and exhibits, and, from a decree requiring the defendant to comply with the contract of sale this appeal has been taken.

The character of an estate held by tenancy by entireties, similar to the one here in controversy, has been settled by numerous decisions of this court. In McCubbin v. Stanford, 85 Md. 380, 37 A. 214, 60 Am. St. Rep. 329, where land was owned by a husband and wife as tenants by entireties, and was mortgaged by the husband to secure his debts, it was held upon foreclosure proceeding, that, since one tenant by entireties cannot alien the property so as to infringe the rights of the other, the mortgage by the husband could not affect the rights of his wife, and, under Const. art. 3, § 43, declaring the property of the wife shall be protected from the debts of the husband, the purchaser of the husband's interest is not entitled to possession of the property as against the wife, because her undivided entirety of interest in it would thereby be destroyed, and she would be deprived of the protection given her by the Constitution. In Clark v. Wootton, 63 Md. 113, where a judgment was obtained by husband and wife against a railway company it was held that the judgment could not be attached for a debt due by the husband, being exempt from execution in virtue of section 43 of article 3 of the Constitution, which provides that the property of the wife shall be protected from the debts of the husband. And in Brewer v. Bowersox, 92 Md. 569, 48 A. 1060, it is said, after a review of the cases upon the subject: "It is not because a conveyance or gift is made to husband and wife as joint tenants that the estate by the entireties arises, but it is because a conveyance or gift is made to two persons who are husband and wife; and since, in the contemplation of the common law, they are but one person, they take, and can only take, not by moieties, but the entirety. The marital relation, with its common-law unity of two persons in one, gives rise to this peculiar estate when a conveyance or gift is made to them without restrictive or qualifying words; and they hold as tenants by the entirety, not because they are declared to so hold, but because they are husband and wife. This estate, with its incidents, continues in Maryland as it existed at the common law. It differs materially from all other tenancies. The right of survivorship, which is one of its chief incidents, cannot be destroyed, except by the joint act of the two, and upon the death of either the other succeeds to the entire property or fund."

Applying the principles enunciated in these cases, we cannot see how the judgment in this case can be regarded, in any legal sense, as a lien upon the property in question, during the life of the wife. The law is well settled in this state that judgments create liens only because the land is made liable by statute to be seized and sold on execution. A judgment creditor stands in the place of his debtor, and he can only take the property of his debtor subject to the charges to which it was justly liable in the hands of the debtor at the time of the rendition of the judgment. Valentine v Seiss, 79 Md. 187, 28 A. 892; Morton v. Grafflin, 68 Md. 545, 13 A. 341, 15 A. 298; Hartsock v. Russell, 52 Md. 619. An "execution" is a...