Krone v. Linville

• Decision Date: 25 June 1869
• Citation: Krone v. Linville, 31 Md. 138 (Md. 1869)
• Parties: JOHN B. KRONE v. AUGUSTUS C. LINVILLE.
• Court: Maryland Court of Appeals

31 Md. 138

JOHN B. KRONE v. AUGUSTUS C. LINVILLE.

Court of Appeals of Maryland

June 25, 1869

Appeal from the Circuit Court of Baltimore City.

Maria McDonald, under a deed of trust from her father James Long made in the year 1803, and under his will confirming said deed, became entitled to certain real estate for the term of her life, with a limitation over after her death, to her children and descendants in fee. By a subsequent marriage she became the wife of John B. Krone, from whom she was afterwards divorced a mensa et thoro. By the decree of divorce, all the property of every kind and description which the said Maria held and possessed, or was in any manner interested in at the time of and previous to said marriage or acquired in her own right since said marriage, was awarded to her, "to be held, possessed, and enjoyed, disposed of, sold and conveyed, by her as a feme sole to the same purpose, extent, and effect, as she might or would have done had said marriage never taken place." Subsequent to the divorce, the appellee, Augustus C. Linville, one of her children, filed the bill in this cause for a sale of said real estate, as incapable of partition, and a division of the proceeds (after an allowance of part thereof to said Maria in commutation of her life interest,) among the parties entitled thereto. Maria McDonald filed her separate answer to the bill, without any order of court for that purpose, in which she consented to a sale and agreed to accept one-sixth of the net proceeds in commutation of her life interest. John B. Krone was also made a party and filed his answer, in which he claimed that he had taken an appeal from the decree divorcing him from his wife, and that said appeal was then pending; that his wife had no right to answer separately from him, or to make the agreement she had made in regard to the distribution of the proceeds.

The proper persons were made parties, and evidence taken, and the court below passed a decree for a sale of the property, and appointing a trustee for that purpose. Under this decree the property was sold and the sale reported to and ratified by the court. From the decree for the sale, the present appeal was taken by John B. Krone.

The cause was argued before STEWART, MILLER, ALVEY and ROBINSON JJ.

William Shepard Bryan, for the appellant:

No construction of the deeds can make Mrs. Krone and the complainant concurrent owners. A partition cannot be decreed except between concurrent owners. Code of Pub. Gen. Laws, Art. 16, sec. 99.

The complainant then, by his own showing, is not entitled to a partition as against Mrs. Krone. The bill ought therefore to have been dismissed. Ridgway v. Toram, 2 Md. Ch. 303; Chambers v. Chalmers, 4 G. & J. 420; Gibbs v. Cunningham, 4 Md. Ch. 322.

By the deeds filed with the bills, the lands in question were conveyed to trustees, whose most important duty was to preserve certain contingent remainders, yet the application was to break up the settlement entirely, sell the property and divide the proceeds. The court sanctioned the proceeding, but it ought to have condemned it. Townsend v. Lawton, 2 P. Wms. 379; Symance v. Tattan, 1 Atk. 613; Woodhouse v. Hoskins, 3 Ib. 22.

Mrs. Krone's answer having been made separately from her husband, without a previous order of court, it should not be regarded. Perine v.

Swain, 1 John. Ch. 23.

The consent in Mrs. Krone's answer (relating to her real estate and given without the authority of her husband,) is null. Unger v. Price, 9 Md. 558; Brown v. Hayward, 1 Hare, 432; Code, Art. 45, sec. 2.

The record from the Court of Appeals was not offered in evidence. It would have shown that the divorce suit was then pending, and if it could now be considered, it would show that it was decided in favor of the appellant. The copy of the decree exhibited with the bill avails nothing. Eyler v. Crabbs, 2 Md. 154.

George William Brown and Frederick W. Brune, for the appellee:

The inquiry is limited to this, whether the appellant, by virtue of his rights growing out of his marriage, and notwithstanding his divorce in 1867, could, by refusing his consent to this sale upon the grounds set up in his answer, prevent the court from exercising the jurisdiction claimed for it by the appellee?

Before the Act of 1862, ch. 156, a Court of Chancery in Maryland could exercise the jurisdiction claimed. Under and since that Act, the jurisdiction is unquestionable. Code, Art. 16, sec. 99; Bolgiano v. Cook, 19 Md. 376; Billingslea v. Baldwin, 23 Md. 96, 115.

Whether a legal or equitable life estate in the property originally, Maria's interest before marriage in 1866, by virtue of the Code, was settled to her separate use. Krone married her with the provision of the law impressed upon the property, and she has in equity the right to assign it, and still more, to consent that a Court of Equity shall decree a sale of her life interest, in connection with the remainder, for the mutual benefit of herself and her children.

Courts of Equity, which regard married women, in dealing with their separate property, as femes sole, would recognize and act on such agreement or consent, without reference to the husband, where such consent applies to their legal, and still more, their equitable life estates, held for their separate use, with terms added, which, so far from denying their right of disposition, expressly recognize it. Code, Art. 45, secs. 1, 2; Bridges v. McKenna, 14 Md. 258; Weems v. Weems, 19 Md. 345; Cooke v. Husbands, 11 Md. 492, 503-508; Hulme v. Tenant, 65 Law Lib. 360-368; Jaques v. Methodist Church, 17 John. 548, 578, 579, 585.

Krone having been divorced in 1867 by the court below, the decree clearly destroys any marital rights on his part over this property, and she could deal with it in any and every way as a feme sole, so long as that decree continued unreversed and in force. 2 Bishop on Marriage & Divorce, sec. 733.

To hold otherwise would be to allow the appellant to impeach in a collateral proceeding a subsisting decree. Dorsey v. Garey, 30 Md. 489.

The parties before the court include the whole in whom the first estate of inheritance in the property is vested, and they are entitled to be regarded as the full representatives of all other persons who have remote contingent interests, and it is not necessary to bring such persons before the court. Story's Eq. Pl. secs. 142, 144-146; Act of 1861-2, ch. 156.

Although, generally, a married woman should file a joint answer with her husband in equity proceedings, yet there are many exceptions to the rule, for instance:

1. Where a woman has been divorced, either ex vinculo or a mensa et thoro.

2. Where she lives separate from her husband, or claims in opposition to him, she may, with permission of court, answer separately. Story's Eq. Pl. sec. 71.

Here the decree of divorce was such a permission, or if any further permission was required, the court below could grant it.

If this court should be of opinion that the decree of the court below was erroneous in dealing with the rights of the appellant, it will not reverse it so as to affect the validity of the sales made by the trustee under said decree, nor the distribution of the proceeds of sale under the auditor's report in the case, which was finally ratified before the decree divorcing the appellant was reversed, and he having never given bond, nor made the affidavit required by law. Code, Art. 5, sec. 31, 1864, ch. 322; Ward v. Hollins, 14 Md. 158; Wampler v. Wolfinger, 13 Md. 337.

Alvey J., delivered the opinion of the court.

The appeal in this case brings before us only so much of the decree appealed from as may affect the appellant, John B. Krone.

He contends that the decree should be reversed, mainly for three reasons:

1st. That as Mrs. Krone was but tenant for life of the land decreed to be sold, and not a joint tenant, tenant in common, parcener, or concurrent owner thereof, with the complainant and the other parties interested in remainder, therefore, under the Code, Art. 16, sec. 99, there was no power or jurisdiction in the court to decree either sale or partition.

2nd. That because Mrs. Krone's answer was taken separately from that of her husband, without a previous order of the court, it should be disregarded and treated as out of the case; and

3d. That the consent of Mrs. Krone, given to the passage of the decree, without the authority of her husband, is a nullity, and that no decree could be founded thereon.

1. As to the first ground for reversal, that of want of power and jurisdiction in the court to pass the decree, that would appear to be completely answered by the Act of 1861-2, ch 156, extending the...