Masterman v. Masterman

• Decision Date: 23 June 1916
• Docket Number: 37.
• Parties: MASTERMAN v. MASTERMAN.
• Court: Maryland Court of Appeals

98 A. 537

129 Md. 167

MASTERMAN v. MASTERMAN.

No. 37.

Court of Appeals of Maryland

June 23, 1916

Appeal from Circuit Court of Baltimore City; John J. Dobler, Judge.

Bill by Agnes F. Masterman against Louis A. Masterman. From an order overruling a demurrer to the bill, defendant appeals. Affirmed and remanded.

Argued before BOYD, C.J., and BURKE, THOMAS, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

John M Requardt, of Baltimore, for appellant.

Richard H. Stevenson, of Baltimore, for appellee.

BOYD C.J.

This is an appeal from an order overruling a demurrer to an amended bill of complaint filed by the appellee against the appellant. The bill alleges that the plaintiff married the defendant on September 5, 1894, and resided with him until the 17th of March, 1915, at which time he abandoned and deserted her, and they are now living apart occupying and maintaining separate domiciles; that up to the time of the separation they occupied a dwelling house in Govans, Baltimore county, which on the 1st of April, 1915 was damaged by fire, which rendered it untenantable, and since then the plaintiff, being unable to occupy the house, has resided in Baltimore city; that the house was a commodious, comfortable, and spacious frame cottage, with modern and sanitary improvements, well situated in and upon a spacious and well-kept plot of ground--

"that said premises, which had a valuation of at least $4,000 is leasehold property, subject to an annual ground rent of $50, and is owned by the defendant, Louis A. Masterman and your oratrix as tenants by the entireties."

It is further alleged that the house can be restored to its former state of repair and habitation for a sum not exceeding the amount of insurance, namely, $2,500, provided the repairs are made promptly and with reasonable dispatch and the house is no longer exposed to the weather and elements; that the $2,500 paid by the insurance company was paid by a check drawn to their joint order, and is now on deposit in a bank in Baltimore city; that unless some steps are taken promptly and immediately to rehabilitate said premises and house, the same will waste, decay, and become a total loss, beyond repair and restoration; that although the plaintiff has invited the defendant to restore the damaged premises and house, reconcile their respective differences, and again live together in said house as husband and wife, he has refused to do so, and still declines and refuses to repair and restore said house with said insurance money, or to use his portion or share thereof towards that end, and refuses to live with her. The bill then prays that "a receiver be appointed to take charge of said property and said sum of $2,500, now on deposit at the Savings Bank of Baltimore, so that proper and necessary repairs may be made to restore the same to its former state and condition, or in so far as said sum will repair or restore said house," and for general relief.

The deed is not in the record, and its date is not given. It was executed some time after September 5, 1894, the time of the marriage of the parties, but whether before or after the act of 1898, chapter 457, took effect we are not informed. In Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266, it is said:

"By the common law of England, which is the law of this state, except where it has been changed or modified by statute, a conveyance to husband and wife does not constitute them joint tenants, nor are they tenants in common. They are in the contemplation of the common law but one person, and hence they take, not by moieties, but the entirety. They are each seized of the entirety and the survivor takes the whole."

It was there also decided that the act of 1822, chapter 162, now codified as section 13 of article 50 of the Code (which provides that no deed, devise, or other instrument of writing shall be construed to create an estate of joint tenancy, unless so expressly provided), does not affect or apply to such an estate as that conveyed to husband and wife, and that the provisions of sections 1 and 2 of article 45 of the Code of 1860, authorizing a married woman to acquire and hold property as therein provided to her separate use, did not at all affect the nature of the estate conveyed to husband and wife by deed to them jointly. In McCubbin v. Stanford, 85 Md. 378, 39 A. 214, 60 Am. St. Rep. 329, Thomas H. Stanford, Jr., gave a deed for property owned by him and his wife, as tenants by entireties, which, while absolute in form, was intended merely to secure a debt. A decree was passed for the sale of that and some other property, and the trustee made a sale of Stanford's interest as tenant by the entireties. A deed was made to the purchaser, and Mrs. Stanford refused to deliver possession. There was an application for a writ of possession against her, and, the petition having been dismissed by a decree pro forma, the purchaser, McCubbin, took the appeal. It was said in the opinion:

"By the common law, husband and wife were considered one person. When, therefore, land was conveyed to them and their heirs, each was in contemplation of law seized and possessed of the entire estate in fee simple, and neither could dispose of any part of it without the assent of the other. Each was entitled to the whole by reason of the legal unity of their existence; and consequently an alienation of any part by either one of them would infringe the vested right of the other. The common law on this point has never been changed in this state. Marburg v. Cole, 49 Md. 411 ."

The court said that under section 43, art. 3, of the Constitution:

"The property of the wife shall be protected from the debts of the husband"--the purchaser of the husband's interest was not entitled to possession of the property as against the wife, "because thereby the wife's undivided entirety of interest in it would be destroyed, and she would be deprived of the protection which the Constitution intended to give her."

In speaking of the act of 1853, chapter 245, which used similar language to the Constitutional provision quoted above, it was said:

"This act did not impair or alter the marital rights of the husband in his wife's property, but it placed it beyond the reach of his creditors."

Judge McSherry said in the opinion delivered by him in the circuit court, which was adopted by us in Brewer v. Bowersox, 92 Md. 567, 48 A. 1060:

"It is not because a conveyance or gift is made to husband and wife as joint tenants that the estate by 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. McCubbin v. Stanford, 85 Md. 390 [37 A. 214, 60 Am. St. Rep. 329]. 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."

In Jordan v. Reynolds, 105 Md. 288, 66 A. 37, 9 L. R. A. (N. S.) 1026, 121 Am. St. Rep. 578, 12 Ann. Cas. 51, a husband and wife held some leasehold property as tenants by the entireties, and there was a judgment standing against the husband. The husband and wife filed a bill for the specific performance of a contract of sale of the property. The defendant resisted on the ground that the judgment was a lien on the property, and hence the title was not good and marketable. After referring to some of the cases cited above, and stating that in this state judgments create liens only because the land is made liable by statute to be seized and sold on execution, Judge Briscoe said:

"It seems, therefore, to be clear, both upon reason and authority, that the judgment in this case is not a lien upon the property, in the lifetime of the wife. There is nothing that can be seized and sold under an execution upon the judgment. Property held by this tenure cannot be sold without the joinder of the wife (McCubbin v. Stanford, supra), and the judgment creditor can acquire no greater rights than those possessed by the judgment debtor."

In Reed v. Reed, 109 Md. 690, 72 A. 414, 130 Am. St. Rep. 552, the wife purchased four lots of ground in 1896 out of her separate fund and estate, and caused them to be conveyed to herself and husband, who were married in 1894, as tenants by entireties. She subsequently obtained a divorce from her husband, and filed a bill, praying that the property be decreed to be hers clear of any interest of her former husband, but we held that if a wife during coverture voluntarily and without any fraud or undue influence on the part of her husband conveyed property to him, a subsequent divorce does not entitle her to the entire ownership, but Judge Thomas concluded the opinion of the court by saying:

"We fully concur in the conclusion reached by the court below, and for the reasons stated and upon the authorities cited by that court, that, as the result of the divorce, the appellant and appellee now hold the property as tenants in common."

In Frey v. McGaw et al., 127 Md. 23, 95 A. 960, there was a judgment against both tenants by entireties, and hence the lien attached.

Our reason for thus referring at length to these cases was to show how the tenancy by entireties is regarded in...