Wolf v. Johnson

• Decision Date: 21 March 1920
• Docket Number: No. 27.,27.
• Citation: 145 A. 363
• Parties: WOLF v. JOHNSON.
• Court: Maryland Court of Appeals

145 A. 363

WOLF

v. JOHNSON.

No. 27.

Court of Appeals of Maryland.

March 21, 1920.

Appeal from Circuit Court, Anne Arundel County; Robert Moss, Judge.

Bill by Carrie P. Johnson against Rudolph Wolf and others, in which the named defendant filed a cross-bill. From the decree, the defendant named appeals. Reversed, and remanded for further proceedings.

Argued before BOND, C. J., and PATTISON, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Charles W. Clagett, of Washington, D. C, for appellant.

Wilson L. Townsend and Irving Diener, both of Washington, D. C, for appellee.

PATTISON, J. On the 4th day of December, 1926, Irving Owings and Jeannette Owings, his wife, conveyed a parcel of ground, situated in Anne Arundel county, unto J. Roland Johnson and the appellee, Carrie P. Johnson, his wife, "as joint tenants with the common law right of survivorship."

J. Roland Johnson died on the 17th day of July, 1927, and in December of that year the appellee was informed by Rudolph Wolf, the appellant, that he held a promissory note for the sum of $1,100, dated January 24, 1927, payable to him three years after date, with interest, purporting to be signed by herself and husband and secured by a deed of trust upon the abovementioned property. This note was, at the time, exhibited to her by the appellant, and, upon examination of the records in the office of the clerk of the circuit court for Anne Arundel county, she found the deed of trust there recorded; whereupon she filed her bill against the appellant and Eldred H. Buchanan and Edward L. Cotter, the trustees named in the deed of trust, in which she alleged, in addition to the facts stated, that she did not sign the promissory note and did not sign or acknowledge the deed of trust, and that said signatures were forgeries. She further alleged that the note and the deed of trust, given to secure it, recorded as alleged, created a cloud upon her title to the property described in the deed of trust, and she asked that it be removed.

The defendant Rudolph Wolf answered the bill, denying plaintiff's allegation that the note was not signed and the deed of trust was not signed and acknowledged by her; and, on the same day, he filed a cross-bill, containing allegations in effect the same as the denials of his answer, and prayed (1) that a decree be passed establishing the lien of the deed of trust upon the property therein described; and (2) should the court find the signatures of Carrie P. Johnson to the note and deed of trust to be forgeries, that a decree be passed establishing the lien of the deed of trust upon the one-half interest of the husband in the property, and, in addition thereto, decree a sale of the property for the purpose of partition.

To this cross-bill, the appellee answered, denying she had signed the note and had signed and acknowledged the deed of trust. The trustees, who were nonresidents of the state, and against whom an order of publication was passed, failed to appear and answer, and a decree pro confesso was passed against them.

At the hearing had upon evidence taken under the order of the court, two questions were presented to the court for its consideration: (1) Did Carrie P. Johnson sign the note, and did she sign and acknowledge the deed of trust? and (2) What was the character of the estate that she and her husband took under the aforesaid conveyance to them; that is, was it a joint tenancy, or an estate by the entireties?

As to the first of these questions, the court held that Carrie P. Johnson did not sign the note and did not sign and acknowledge the deed of trust. Its answer to the second question was that the husband and wife, grantees under the deed to them, took an estate by the entireties and not as joint tenants, and a decree was accordingly passed, dismissing the cross-bill, and declaring the note and deed of trust null and void as against Carrie P. Johnson, and the lands described in the deed of trust. From this decree the appeal was taken.

After the passage of the decree, the appellant, in an agreement with the appellee, found in the record, conceded the correctness of the court's decision in holding that the appellee did not sign the note and did not sign and acknowledge the deed of trust, and, as a result of that concession, the evidence taken was not inserted in the record. Therefore the only question which we are here called upon to decide is whether the estate granted to the appellee, Carrie P. Johnson, and her husband was a joint tenancy or an estate by entireties.

This question we think is answered by the decision in Fladung v. Rose, 58 Md. 13, where certain lands were conveyed to one Fladung and wife for the purpose, as recited in the deed to them, "of creating a joint tenancy in said Bernhard Fladung and Barbara Fladung," and the habendum in said deed was "to the said Bernhard Fladung and Barbara Fladung [his wife] as joint tenants and not as tenants in common, the survivor of them and the heirs, personal representatives, and assigns of such survivor." In that case, Judge Miller, speaking for the court, in an opinion handed down on March 2, 1882, said:

"In Maryland there are but two cases in which deeds conveying property to husband and wife have come before this court for construction. The first is Craft v. Wilcox, 4 Gill, 504, where the conveyance was to husband and wife 'and their heirs and assigns forever, and the survivor of them,' and it was held the husband took the whole by survivorship. In that case it was contended that, as the deed was executed since the Act of 1822, c. 162, which prohibited the creation of an estate in joint tenancy unless the instrument expressly provides that the property conveyed 'is to be held in joint tenancy,' the grantees took as tenants in common, but the court said the deed was not affected by this Act, because it 'does not create a joint tenancy.' The opinion delivered by the court in that case is exceedingly brief, and it must be confessed is not very satisfactory. The other case is that of Marburg v. Cole, 49 Md. 402 , where the deed simply conveyed the property to husband and wife, 'their heirs and assigns in fee.' The wife survived, and the question in the case was whether she had and could convey a clear title to the property. The court recognized the common law doctrine stated by Blackstone that husband and wife, being considered as one person in law, cannot, under a conveyance to them jointly, take the estate by moieties; but both are seized of the entirety per tout et non per my, as still in force in this State, and held, 1st, that the estate conveyed to husband and wife by a deed like the one in that case, is not to them as joint tenants at common law, and hence the Act of 1822, c. 162, does not apply; and 2nd, that the provisions of the Code, art. 45, §§ 1, 2, authorizing married women to acquire and hold property as therein provided, do not, 'at all affect the nature of the estate conveyed to husband and wife by deed to them jointly.' This is the extent of the decision in that case. Nothing further was in fact decided or intended to be decided. * * *

"In neither of these cases did the deed profess to create an estate in common or a joint tenancy, and in the latter this fact is noticed, and the court refrained from expressing any opinion as to what would be the effect of a conveyance like the one now before us, which in terms declares the grantees shall take as joint tenants, and not as tenants in common, and which was executed with the avowed intent and for the express purpose of creating a common law joint tenancy. It has not, therefore, been decided in this State that under such a conveyance husband and wife cannot take and hold as joint tenants, nor do we find such a decided preponderance and weight of authority elsewhere, as to conclude the question.

"It is true there may be found in many cases expressions and dicta to the effect that in no contingency, no matter what may be the terms of the grant, can husband and wife under a conveyance to them after marriage, take or hold as joint tenants or as tenants in common; but the cases in which the point has directly arisen, and where it has been expressly so adjudged, are very few. In Pollock v. Kelly, 6 Irish Com. Law Rep. 367, the deed conveyed the property to husband and wife 'as joint tenants,' and it was held that the effect of it was to grant an estate by entireties; 'for to speak of a grant to a husband and wife as an estate of joint tenancy is, properly speaking, a solecism.' On the other hand, Mr. Preston nearly a century ago, in his valuable Treatise on Estates, after stating the common law doctrine of tenancy by entireties to be when husband and wife take an estate to themselves jointly by grant or devise made to them during coverture, and showing that it is founded upon the legal notion of the unity of two persons who are husband and wife, says, 'In point of fact, and agreeable to natural reason, free from artificial deductions, the husband and wife are distinct and individual persons; and accordingly when lands are granted to them as tenants in...