Marburg v. Cole

• Decision Date: 28 June 1878
• Citation: 49 Md. 402
• Parties: CHARLES L. MARBURG and Others v. ANN REBECCA COLE.
• Court: Maryland Court of Appeals

49 Md. 402

CHARLES L. MARBURG and Others v. ANN REBECCA COLE.

Court of Appeals of Maryland

June 28, 1878

Appeal from the Circuit Court of Baltimore City.

The bill in this case was filed by Ann Rebecca Cole against the appellants for the specific performance of a contract for the sale of a lot of ground in the City of Baltimore. The complainant claimed to be the sole owner of the property, and contracted to sell the same to the appellants, "free of all incumbrances." The defendants objected to completing the purchase on the ground that the complainant was not the sole owner of the property, and that the property was not free from incumbrances. The proceedings show that the property was conveyed to the complainant and Abraham Cole her husband, on the 10th of July, 1872, by William L. Dallam and William M. Marine, trustees, and George W. Perkins. The deed recited that the trustees had sold the property to George W. Perkins, at a trustee's sale; that the sale had been reported to and ratified by the court, and that the said George W. Perkins had in fact purchased the property for the said Ann Rebecca Cole, and Abraham Cole, her husband, who had paid the purchase money therefor. The conveyance was made to the said "Ann Rebecca Cole, and Abraham Cole, her husband, their heirs and assigns, in fee."

On the 14th of February, 1878, two confirmatory deeds were made, one from the trustees to Perkins, and the other from Perkins and his wife, to Ann Rebecca Cole, her husband being then dead. These deeds were made in order to remove an objection taken by the appellants, that the trustees were not authorized by the decree under which they were appointed to convey the property to any one but George W. Perkins, he having been reported to the court as the purchaser.

It further appeared that the appellee and her husband had made two mortgages of the property to secure the repayment of certain promissory notes, and although the mortgages appear to have been released of record, the mortgage notes were not produced, and the appellants claimed that unless produced and cancelled, they constituted a cloud upon the title.

The appellants also alleged that there was a third outstanding mortgage upon the property which had not been released, and that the principal and some of the interest notes thereby intended to be secured, had not yet matured. This mortgage was not produced.

A replication was filed to the answer, but no evidence was taken by either party.

A decree pro forma in favor of the complainant was passed by the court below (Gilmor, J.,) from which decree the defendants appealed.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, GRASON MILLER and ALVEY, JJ.

T Alexander Seth, for the appellants.

The deed from W. L. Dallam and W. M. Marine, trustees, and George W. Perkins to Ann Rebecca Cole and Abraham Cole, her husband described in Complainant's Exhibit No. 1, was executed after the adoption of the Code.

Joint estates, coupled with a survivorship, are foreign to the spirit and letter of our modern jurisprudence. Act of 1822 ch. 162; 1 Code, Art. 49, sec. 12.

It is the policy of the law to disfavor estates of that description. Chew v. Chew, 1 Md. 171.

The estate by entireties is based entirely on the common law doctrine of the legal unity of husband and wife. During the past forty years, the unmistakable tendency of the Legislatures and courts of the different States has been to break away from the old rule, and to recognize that division of person and property which, practically, and in reason, exists between husband and wife. Legislation in the different States has not been uniform on this subject, and the decisions of courts are very conflicting. We are, therefore, compelled to confine ourselves to our own Acts of Assembly, and the opinions of our own courts.

The old law of Maryland vested goods and chattels of the wife in the husband; but our law-makers soon effected important modifications. Act of 1798, ch. 101, sub-ch. 5, sec. 8; Act of 1841, ch. 161.

As early as 1842, we have the important provision that a married woman may become seized and possessed of any property in her own name and as of her own property. Act of 1842, ch. 293; Constitution of 1851, Art. 3, sec. 38.

The next step in the same direction was taken by the Act of 1853, ch. 245.

See also Cooke v. Husbands, 11 Md. 503, in which our Court of Appeals decides that, in equity, a married woman is to be regarded as a feme sole in respect to her separate property. Schindel v. Schindel, 12 Md. 312; Bridges v. McKenna, 14 Md. 265; Weems v. Weems, 19 Md. 344; Buchanan v. Turner, 26 Md. 1; Schull v. Murray, 32 Md. 15; Clark v. Tennison, 33 Md. 89; Act of 1872, ch. 270; Act of 1874, ch. 37.

The true logical conclusion to be deduced from these decisions and Acts of Assembly is, that the common law doctrine of the unity of husband and wife is no longer tenable in this State.

If this unity of husband and wife is destroyed, then the deed created in Ann Rebecca Cole and Abraham Cole a tenancy in common; and Abraham Cole's interest descended, at his death, to his heirs-at-law, subject to his widow's dower right.

Again: This court has never recognized estates by entireties; but has expressly decided (prior to Act of 1822, ch. 162,) that a conveyance to husband and wife jointly creates a joint tenancy. Hanan v. Towers, 3 H. & J. 147; Craft v. Wilcox, 4 Gill, 505.

When property is mortgaged to secure the payment of promissory notes, the mortgage enures to the benefit of any one in whose hands the notes may be, provided he is a bona fide holder of them; and the original mortgagee has no power to release the mortgage, so as to deprive the holders of the notes of the benefit of their security under the mortgage. Boyd v. Parker, 43 Md. 182.

The notes intended to be secured by the mortgages to Lucretia Pembroke, and to Ann M. Gorsuch, have not been produced cancelled, nor has any satisfactory evidence of their having been paid been offered--the release of the mortgage to Lucretia Pembroke not even containing an acknowledgment that the mortgage debt has been satisfied.

Can the appellants know to whose possession these notes have been transferred, or whether or not they have been paid? And can appellee give a clear title until the fact of payment is proved? And is the fact of such payment susceptible of proof, short of the production of the cancelled notes?

The same objection is pertinent to the mortgage to Ella G. Paca as regards some of the interest notes. The principal note secured by said mortgage is, in point of fact, not yet due; and appellants have no means of knowing whether the said mortgage can now be released or not.

A mortgagee cannot compel a redemption before the time fixed in the deed for the performance of the condition. 1 Washburn on Real Prop. 599; 1 Hilliard on Mortgages, 482, note c, and cases there cited.

J. T. Mason, R., for the appellee.

By the deed above mentioned, wherein the property was conveyed to "Ann Rebecca Cole and Abraham Cole, the husband, their heirs and assigns, in fee," the husband and wife took as one person by entireties, they being one and the same person in law; and, upon the death of Abraham, his interest in the property terminated, and Mrs. Cole remained seised of the whole.

This peculiar estate, which is not a joint tenancy, results from the legal unity of husband and wife, whereby the legal existence of the wife is merged in that of the husband, and the two constitute but one person in law-- vir et uxor sunt quasi unica persona; so that if land be conveyed to A, B and C, and the wife of C, C and his wife take as one person a third of the estate, and A and B each a third; so also in a conveyance to husband and wife, they take as one person, each being seized of the whole, per tout et non per mie, and upon the death of either, the survivor has the whole, not by survivorship, as in joint tenancy, for the jus accrescendi does not exist between husband and wife, but by virtue of the original estate.

The death of one "merely produces a change in the properties of the legal person holding, and not an alteration in the legal estate holder; the loss of an adjunct merely reduces the legal person holding the estate to an individuality, identical with the natural person. The whole estate continues in the survivor, the same as it would continue in a corporation after the death of one of the corporators." 2 Bl. Com. 182; 1 Wash. Real Prop. 332, 672; Tyler on Infancy & Coverture, 498; Stuckey v. Keefe, 26 Pa. St. 399; Bates v. Seeley, 46 Pa. St. 248; Johnson v. Hart, 6 W. & S. 319; Thornton v. Thornton, 3 Rand. 179; Rogers v. Benson, 5 John. Ch. 430; Taul v. Campbell, 7 Yerger, 319; Feiston v. Panott, 5 Term, 652; Hemingway v. Scales, 42 Miss. 1; Pierce v. Chase, 108 Mass. 258; Atcheson v. Atcheson, 11 Beav. 485.

The common law rule, as above stated, has not been changed by the Act of 1822, ch. 162, (Code, Art. 49, sec. 12,) which declares that "no deed, etc., shall be construed to create a joint tenancy, unless in such deed, etc., it is expressly provided that the property thereby conveyed is to be held in joint tenancy." The statute is in derogation of the common law, and should be strictly construed. Moreover, it refers solely to joint tenancies, and the estate of husband and wife is not a joint tenancy, but a tenancy by entireties--a different estate altogether, and one not within the language, the intent or the reason of the statute.

The object of this statute was to remedy the mischief arising from failure of joint tenants to make partition during life whereby the heirs of the one first dying were deprived of their inheritance, but husband and wife could not make partition. The statutes of partition,...