McCubbin v. Stanford

• Decision Date: 31 March 1897
• Citation: 37 A. 214,85 Md. 378
• Parties: MCCUBBIN v. STANFORD.
• Court: Maryland Court of Appeals

37 A. 214

85 Md. 378

MCCUBBIN v. STANFORD.

Court of Appeals of Maryland

March 31, 1897

Appeal from circuit court of Baltimore city.

Petition by Thomas D. McCubbin for a writ of habere facias possessionem against Mary A. Stanford. From a decree, pro forma, dismissing the petition, petitioner appeals. Affirmed.

Hugh L Bond, Jr., and H. R. Preston, for appellant.

H. E Mann and Joseph B. Seth, for appellee.

Argued before McSHERRY, C. J., and BRYAN, FOWLER, BRISCOE, BOYD PAGE, and RUSSUM, JJ.

BRYAN J.

McCubbin having purchased certain real estate in the city of Baltimore at a sale under a decree in equity, filed a petition for a writ of habere facias possessionem against Mrs. Stanford, who was in possession of the property. Her husband was the defendant in equity, but she was not a party to the proceeding. The suit was for the purpose of subjecting the property to the payment of a mortgage executed by the husband. She answered the petition, and the court, pro forma, dismissed it. Appeal by McCubbin.

It was stated in the petition and admitted in the answer that the real estate was conveyed to Stanford and his wife to hold by entireties. 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 seised 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 of 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 forty-third section of the third article of the constitution declares that "the property of the wife shall be protected from the debts of the husband." We decided in Clark v. Wootton, 63 Md. 113, that this provision of the constitution conferred the protection to the wife's property without the necessity of an act of the assembly, and that it embraced every portion of the property. The matter which was the subject of consideration in that case was a judgment in favor of husband and wife, which they held by the unity of interest which is a consequence of the matrimonial relation. By the law the husband had the right to alien it, but nevertheless, unless he saw fit to do so, the wife's...