Annapolis Banking & Trust Co. v. Neilson

Offutt, J., delivered the opinion of the Court. An attachment, issued out of the Superior Court of Baltimore City on a judgment in favor of the Annapolis Banking & Trust Company against R. Stewart Neilson for $5,014.11, was laid severally in the hands of R. Tynes Smith and Esther D. Smith, garnishees. The garnishees occupied at the time property known as No. 3931 Cloverhill Road in Baltimore City, which they rented from R. Stewart Neilson and Edith M. Neilson, his wife, who held the fee simple title to it as tenants by the entireties. Upon the return of the attachment, R. Stewart Neilson filed in each garnishee case a motion to quash the writ, and after a hearing and testimony an oi’der was entered in each case granting the motion.

These appeals are from those orders. The ground of the motions was that the attachment affected only the rent issuing out of the property so held by Neilson and his wife as tenants by the entireties, that it accrued to them as tenants by the entireties, and that it could not be taken in execution to satisfy the several and separate debts of either. The controlling question presented by the appeals is whether that proposition correctly states the law. It has long been the settled law of this state that property held by husband and wife as tenants by the entireties cannot be taken to satisfy the several and separate debts of either ¹⁰ tenant.

Wolf v. Johnson, 157 Md. 112 , 145 A. 363 ; McCubbin v. Stanford, 85 Md. 390 , 37 A. 214 ; Marburg v. Cole, 49 Md. 102 . That was the rule at common law. 2 Blackst. Com. 182; Co. Litt. 187; Cruise’s Digest, 492; 1 Preston, Estates, 131, 132; Tiffany, Real Property, sec. 194. And notwithstanding the disappearance of the hypothetical unity of husband and wife as the result of statutory changes, the rule itself in this state remains unchanged and unimpaired.

The nature of that unity was in Brewer v. Bowersox, 92 Md. 567, 572 , 48 A. 1060, 1062 , thus defined: “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 .” But it had been held in Fladung v. Rose, 58 Md. 13 , that that unity did not prevent a husband and wife from holding property as joint tenants or even as tenants in common; and in Brell v. Brell, 143 Md. 450 , 122 A. 635 , and Whitelock v. Whitelock, 156 Md. 115 , 143 A. 712 , it was held that the usufruct of, property so held could be apportioned between the tenants as though they were joint- tenants or tenants in common.

Between the decision in Fladung v. Rose, supra, and Wolf v. Johnson, supra, legislation had in a great measure freed the wife’s property from the control which the common law gave the husband over it, and after chapter 457 of the Acts of 1898 (Code 1921 and Supp. 1929, art. 45, sec. 1 et seq.) the wife had the same right to hold, manage, enjoy, use and dispose of her property that the husband had in respect- to ¹¹ his. At the time Fladung v. Rose, supra, was decided, the Act of 1842, ch. 245, protecting the wife’s property from the debts of the husband, and chapter 293 of the Acts of 1853, allowing her to make a will giving her property to her husband, or to other persons with his consent, provided the will was made sixty days before her death, and allowing her to hold as a feme sole property of the value of $1,000, which she had earned by her skill, industry, or personal labor, were in force, as was Code 1860, secs. 1 and 2. Prior to those acts, at common law the husband’s marital'rights gave him complete control over all the wife’s property during her life. Those successive steps in the legislative pi’ocess of freeing the wife’s property from the control which the common law marital rights of the husband gave him over it, while they progressively enlarged her dominion over her own property during the husband’s life, did not affect the quantity of her estate therein.

For while at common law, during coverture, he took a freehold estate in her property (Venable’s Syllabus on Real Property, 35), and her power over it was suspended, at his death sh'e resumed possession of it free from any incumbrance or contract made by him. Ibid. The effect of such legislation was, however, to modify the common law doctrine of the “legal unity and oneness” of man and wife, and so it was held in Fladung v. Rose, supra, that while a deed to husband and wife jointly or to them and their heirs in fee will create a tenancy by the entireties, nevertheless, if the deed is to them as “joint tenants,” though qualified by the words, “the survivor of them and the heirs, personal representatives, and assigns of such survivor,” it will create a joint tenancy and not a tenancy by the entireties. But while the court in that case reached its conclusion by assuming that the common law principle of the unity of husband and wife had been at least modified by the Married Women’s Acts, codified as sections 1 and 2, Code 1860, in Clark v. Wootton, 63 Md. 113 , it was held that a judgment obtained by a husband and wife against a railway company was, because of that unity, held by them as tenants by the entireties, and in Brewer v. Bowersox, 92 Md. 567 , 48 A. 1060, 1062 , decided ¹² in 1901, it was held that a fund received by a bank “of Jacob or Emily Bowersox”, who were husband and wife, was held by them as tenants by the entireties, and it was there announced that: “This estate, with its incidents, continues in Maryland as it existed at the common law.” And McCubbin v. Stanford, supra, is cited in support of that statement.

So that, while the reasons for the rule have disappeared, the rule itself survives in its original force and vigor -to this extent, that where property is transferred to a husband and wife jointly and to the survivor, without words indicating that they are to hold it in any other manner, they will be presumed to hold it as tenants by the entireties as at common law. And the unity which at common law actually resulted from the merger of the wife’s identity in that of the husband, in respect to the control of her property, survives as a fiction for the purpose of continuing what has been the unbroken policy of this state. In applying the rule to conditions which have resulted from the operation of the emancipatory statutes and in keeping the rule intact, on the one hand, and in giving effect to those statutes on the other, the court has necessarily been forced to distinguish between the effect of those statutes on the extent of the wife’s estate in her property, and its effect on the control of such property during coverture.' And while through the fiction of unity it has preserved intact the estate of tenancy by the entireties, it has at the same time recognized that, as a result of those statutes, the tenants have inter sese rights in the common property which can only be enforced upon the assumption that the husband and the wife are not one but two persons. So in Masterman v. Masterman, 129 Md. 179 , 98 A. 537 , it was held that a fund realized from insurance on property held by the entireties which was destroyed by fire might be invested by order of the court and one-half of the income from the fund paid to each tenant, the corpus to go to the survivor, and the same result was reached in Brell v. Brell, 143 Md. 450 , 122 A. 635 , in respect to the' income from a fund realized from the sale of real estate, and in Whitelock v. Whitelock, 156 Md. 122 , 143 A. 712 , as to the income from a ¹³ fund paid to trustees in satisfaction of a mortgage debt, and in Tizer v. Tizer, 162 Md. 489 , 160 A. 163 , it was stated that there could be no valid renting of property held by the entireties unless the wives joined with the husbands.

But in none of those cases was it held that the quality of severability of the interest of the husband and