Tizer v. Tizer

• Decision Date: 01 August 1932
• Docket Number: No. 58.,58.
• Citation: 161 A. 510
• Parties: TIZER et al. v. TIZER et al.
• Court: Maryland Court of Appeals

161 A. 510

TIZER et al.

v. TIZER et al.

No. 58.

Court of Appeals of Maryland.

Aug. 1, 1932.

Dissenting opinion.

For majority opinion, see 160 A. 163.

PARKE, J. (dissenting).

The facts on this record are stated in the decision of the court. They present this situation. A and B, his wife, are seised and possessed as tenants by entireties of X, a lot of land; and C and D, his wife, are seised and possessed as tenants by entireties of Y, a contiguous lot of land. These lots are improved by a building which covers both lots. Although the building is upon both lots, the division line between lots X and X is the property line dividing the ownership of the building, so the improvement, which is a part of the realty, is held according to the respective boundary lines of the lots. B, the wife of A, D, the wife of C, and E formed a copartnership for the purpose of carrying on a business in the building, and, for that purpose, A and B, his wife, and C and D, his wife, executed in writing and delivered to B, D, and E a lease of lots X and Y for a definite term, upon a specific yearly money rent, payable monthly by B, D and E, the tenants, to A, B, C, and D, the landlords. It has been determined by this court that this lease is invalid, and the reasons are clearly stated by Judge Digges, who wrote the prevailing opinion.

The argument is that one seised and possessed in severalty of a parcel of land cannot make a valid demise of the parcel to himself any more than he could a grant to himself; and that the lease in the present instance having been made by four tenants by entireties to the wives of the two husbands and E, a third person, no leasehold estate was created, because the husband and wife, in contemplation of the common law, are but one person, and hence they take, not by moieties, but are both seised of the entirety, the survivor to take the whole; and, therefore, the husband and wife cannot grant to the other an estate of which that other is not already seised. The application of this reasoning to the present record involves, it is submitted, a twofold fallacy.

1. The subject-matter of the devise is not single but compound, since it is not one parcel of land which the four lessors attempted to demise, but a combination of two adjacent, but separately owned, parcels. Hence, there was let one parcel of land in which neither pair of spouses had any interest or estate. B, one of the lessees was a tenant by entireties in lot X, but had neither estate nor interest in lot Y, and, conversely, D, one of the lessees, was a tenant by entireties in lot Y, but had neither estate nor interest in lot Y; and E, the third lessee, had neither interest nor estate in either of the lots X and Y. It follows that a demise of lots X and 1 by A and B, who were seised as tenants by the entirety of lot X, and by C and D, who were seised as tenants by the entirety of lot Y, to the lessees, B, D, and E was not a demise of an estate in land which was owned by the four lessors either in common or as joint tenants, or, ex necessitate rei, as tenants by the entirety; and, therefore, the letting to B, D, and E was not an attempt to create a less or inferior estate or interest in the same land of which the lessees were seised or possessed by an estate in common, in joint tenancy, or in tenancy by entireties. In short, the letting of lots X and Y to B and D did create in these lessees a leasehold interest or term in one of the parcels of land in which they, jointly or singly, before had no interest or estate whatsoever, and in E, the co-tenant of B and D, an interest or term in both parcels of land in which he had theretofore no interest or estate of any kind. The condition for the operation of the principle invoked by the majority opinion does not seem to exist 2. The second fallacy grows out' of a failure to recognize that where the lands or estates therein are not held in severalty but by two or more persons having undivided interests which involve, or may involve, a co-possession of the land, these persons, as between themselves, are each entitled to a share of the rents, issues and profits. Tiffany on Real Property (2d Ed.) § 191; Williams on Real Property (21st Ed.) 136; 4 Kent's Commentaries, 359. If, however, the coowners are husband and wife deriving their title under the same instrument, the husband, having at common law the right to control and dispose of his wife's land during his life, was entitled to all the rents and profits of land held by entireties, and could convey the land so as to divest his wife of all right of possession during his life, but by statute the husband's right is now so limited, and that of the wife enlarged, that the husband can no longer assert an exclusive right to the rents and profits or divest his wife of the right to share therein¹, but the wife has a right to share equally with the husband in the rents and profits². The effect, therefore, of the statutes is to enable certain things to be done which could not be done at the common law. Cochrane v. Cochrane, 139 Md. 530, 532-534, 115 A. 811; and compare Woodfall on Landlord and Tenant (21st Ed.) 54, 55.

The Constitution (1867) of Maryland expressly declares that the property of the wife shall be protected against the debts of husband. Article 3, § 43 of Constitution, vol. 1, p. 100 of Code. Pursuant to this mandate, the Legislature has enacted appropriate laws which are found in article 45 of the Code. These statutes have been held not to affect the nature of an estate by entireties at the common law. Marburg v. Cole, 49 Md. 402, 412, 413, 33 Am. Rep. 266; Fladung v. Rose, 58 Md. 21; McCubbin v. Stanford, 85 Md. 390, 37 A. 214, 60 Am. St. Rep. 329; Brewer v. Bowersox, 92...