Scholl v. Scholl

• Decision Date: 25 June 1947
• Docket Number: Civil Action No. 29532.
• Citation: 72 F. Supp. 823
• Parties: SCHOLL v. SCHOLL.
• Court: U.S. District Court — District of Columbia

72 F. Supp. 823

SCHOLL v. SCHOLL.

Civil Action No. 29532.

District Court of the United States for the District of Columbia.

June 25, 1947.

Arthur Lambert and Benjamin L. Tepper, both of Washington, D. C., for plaintiff.

Jack Politz and Jacob N. Halper, both of Washington, D. C., for defendant.

McGUIRE, Justice.

This is a complaint for partition of property known as premises 4722-47th Street, N. W., Washington, D. C.

The pertinent facts are, briefly, as follows:

Plaintiff and defendant were formerly husband and wife; they were married January 14, 1927, and lived together in that status until September 1937; in 1931 they purchased the premises located at 4722 47th Street, N. W., in this city and within the jurisdiction of this court; title was taken in their names as tenants by the entireties. It appears that both parties obligated themselves and are still obligated for the balance due on a first trust. One child was born as a result of their union.

In 1937 the parties separated but the plaintiff continued to reside in the premises until sometime in 1940. She then established a residence in the State of Florida. Subsequently, early in 1941, she filed suit for an absolute divorce in said State, against the defendant, on the grounds of extreme cruelty and on February 12, 1941, she obtained a decree in her favor and was also awarded custody and control of the minor child of the parties — this latter, however, has no direct bearing on this proceeding.

The immediate question with which we are confronted is whether or not Section 16 — 409 of the D.C. Code, 1940 Edition, applies in this proceeding, or whether the applicable statute is Section 16—1301 of the same Code.

I conclude as a matter of law that Section 16 — 409, by its very terms, has no applicability herein, but that the rights of the parties are to be resolved under Section 16 — 1301 of the D. C. Code, 1940 Ed.

The original tenancy was that of entireties, its peculiar essence being that it is a species of joint tenancy peculiar to the relationship of husband and wife and which can be created only by a conveyance to them during coverture. Once it is created, the husband and wife each have a concurrent interest in the whole, or, as it has been expressed, they could not hold the estate "by moieties as joint tenants per tout et per my, but both were seised of the entirety, per tout et non per my." Fairclaw v. Forrest, 76 U.S.App.D.C. 197, 200, 130 F.2d 829, 832, 143 A.L.R. 1154.

It follows, therefore, that when the marriage relationship was dissolved at the suit of the wife, by the Florida Court, full faith and credit being given that judgment by this Court, the estate of which the individuals were seised, on the date of that decree—the unity which gave it its essential character being thus abrogated by operation of law — it became a tenancy in common, and, therefore, the complaint is and must be treated as one between such tenants, and this by the great weight of authority. See Meyers v. East End Loan & Savings Association, 139 Md. 607, 612, 116 A. 453; Bowles v. Bowles, D.C., 72 F.Supp. 822, an opinion by Mr. Justice Adkins following the Meyers case.

Oxley v. Oxley, App.D.C., 159 F.2d 10, 12, cited by the defendant, can be distinguished. That was a proceeding for divorce in this jurisdiction and there the Court reversed the trial court upon its refusal to award to...