Arbesman v. Winer

SMITH, Judge. We shall hold that in the unique circumstances of this case, where a husband and wife owned land as tenants by the entireties and only the husband gave notice of termination of the tenancy to a tenant at will, an action for repossession of the premises may not be maintained. Appellee Ephraim Winer and his wife, Ray Winer, own land in Baltimore County as tenants by the entireties. From 1935 to 1948, 1960 to 1964, and 1966 to the present, appellant Fannie Arbesman has lived with the Winers in their home.

She has had hér own room and the only set of keys to the doors leading into that room. Aside from the fact that Ray Winer kept some private papers there, no one other than Mrs. Arbesman used the room. Mrs. Arbesman has never been requested to pay, nor has she paid, any rent. In recent years she has assisted and cared for her sister, Ray Winer, who has been in poor health.

It seems that on February 17, 1983, Ephraim Winer told his wife that either Fannie Arbesman would have to vacate the residence or he would not return to the home himself. The wife refused to require her sister to leave. The husband left the home and then proceeded to give Fannie Arbesman one month’s notice to quit the premises pursuant to Md.Code (1974, 1981 Repl.Vol., 1982 Cum.Supp.) § 8-402(b)(1), Real Property Article. Mrs. Arbesman did not remove herself from the residence.

Ephraim Winer then filed suit in the District Court of Maryland to repossess the ²⁸⁵ premises. Despite Mrs. Arbesman’s claim that the wife was a necessary party, the District Court judge determined that the husband could properly maintain the action. He granted restitution of possession of the premises. Mrs. Arbesman appealed to the Circuit Court for Baltimore County.

In the circuit court Mrs. Arbesman filed a motion raising preliminary objection. She contended, among other things, that the suit must be dismissed because the wife was not a party. The wife appeared and testified on that motion. She said that at no time had she agreed to have her sister leave the premises and that she wished her sister to remain there.

She further stated that, although she and her husband were not speaking to each other at that time, “[h]e knows, he is aware of the fact that I want her and need her.” The circuit court in a de novo trial affirmed the judgment of the District Court. The trial judge noted that Mrs. Arbesman was a tenant at will and Ray Winer was not a necessary party to the action. He reasoned that although tenancy by the entireties property may be leased only by the joint act of husband and wife, the law of property does not require both of them to join in the giving of notice to a tenant at will to quit the premises. He said: “The Defendant’s habitation of the Winer home ceased to be a ‘joint act’ of husband and wife, as tenants by the entireties, when the Plaintiff withdrew his consent and requested that she vacate the premises. ...

As long as the property is held by the Plaintiff and his wife, Ray Winer, as tenants by the entireties, clearly the Court must follow the law in Maryland and require the consent of both Plaintiff and his wife in order for the Defendant to remain on the premises.” We granted Mrs. Arbesman’s petition for writ of certiorari in order that we might address the important public issue here presented. Mrs. Arbesman argues that she is not a tenant at will but a lodger or boarder and, thus, that her occupancy of the premises may not be terminated in the manner sought to be ²⁸⁶ done here. In the view we take of this case we find it unnecessary to decide such an issue. We shall assume arguendo that she is in fact a tenant at will.

At common law the husband had control of the property held by the spouses as tenants by the entireties, subject only to the wife’s right of survivorship. Thus he alone was entitled to all rents and profits arising from the entireties property during the marriage. See Schilbach v. Schilbach, 171 Md. 405, 408 , 189 A. 432 (1937); Masterman v. Masterman, 129 Md. 167, 174 , 98 A. 537 (1916). In order that the whole could remain for the surviving spouse, however, neither spouse could dispose of the property, lease it, or subject it to any lien or encumbrance absent the consent of the other spouse.

See Columbian Carbon Co. v. Kight, 207 Md. 203, 206 , 114 A.2d 28 (1955); Marburg v. Cole, 49 Md. 402, 411 (1878). In the latter part of the last century, many state legislatures passed married women’s property acts. Maryland was no exception. The purpose of these acts was to permit married women, in derogation of the common law, to acquire and hold property for their own use.

See Columbian Carbon Co., 207 Md. at 208 , 114 A.2d 28 ; Marburg, 49 Md. at 412-13 . Judge Delaplaine pointed out for the Court in Columbian Carbon Co., “This Court has taken the view that the Married Women’s Property Acts were passed by the Legislature to protect the wife’s property from the control of the husband, but not to change the nature of her estate.” 207 Md. at 208 , 114 A.2d 28 . In Marburg, 49 Md. 402 , Judge Alvey said for the Court: “By the common law of England, which is the law of this State, except where it has been changed or modified by statute, a conveyance to husband and wife does not constitute them joint tenants, nor are they tenants in common. They are, in the contemplation of the common law, but one person, and hence they take, not by moieties, but the entirety.

They are each seised of the entirety, and the survivor takes the whole. As stated by Blackstone, ²⁸⁷ ‘husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout, et non per my; the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.’ 2 Bl.Com. 182.” 49 Md. at 411 . Accord McCubbin v. Stanford, 85 Md. 378, 390 , 37 A. 214 (1897). See Annot., 30 L.R.A. 305 (1895).

In Marburg the Court held that Ch. 162 of the Acts of 1822, now codified as § 2-117, Real Property Article, which provided that no deed, devise, or other instrument of writing should be construed to create an estate of joint tenancy unless so expressly provided, did not affect or apply to such an estate as was conveyed to husband and wife. 49 Md. at 412 . It further held that the provisions of §§ 1 and 2 of Art. 45 of the Code of 1860, which authorized a married woman to acquire and hold property as therein provided to her separate use, did not at all affect the nature of the estate conveyed to husband and wife by deed to them jointly. Id. at 412-13. Because the husband’s right to rents, profits, and income from the property derived from the common law marital rights and not from the marital estate itself, the married women’s property acts did affect this aspect of the tenancy by the entireties estate.

See Schilbach, 171 Md. at 408 , 189 A. 432 ; Masterman, 129 Md. at 174 , 98 A. 537 . The wife, therefore, was deemed to have an equal right to the rents, profits, and income derived from the property. See Wardrop v. Wardrop, 211 Md. 14, 22 , 124 A.2d 576 (1956); Columbian Carbon Co., 207 Md. at 209 , 114 A.2d 28 ; Brown v. Brown, 204 Md. 197, 212 , 103 A.2d 856 (1954); Elko v. Elko, 187 Md. 161, 168 , 49 A.2d 441 (1946); Annapolis Banking & Trust Co. v. Neilson, 164 Md. 8,13-14 , 164 A. 157 (1933). Recent cases of this Court have demonstrated the continued validity and vitality of the tenancy by the entireties estate in Maryland.

For example, in Picking v. Yates, 265 Md. 1 , 288 A.2d 146 (1972), the Court said: ²⁸⁸ “No principle is better established in our law than that tenants by the entirety, because, unlike joint tenants, they hold per tout et non per my, must act together to sell their property, Eastern Shore Bldg. & Loan Corp. v. Bank of Somerset, 253 Md. 525 , 253 A.2d 367 (1969); to subject it to any interest or encumbrance, Lissau v. Smith, 215 Md. 538 , 138 A.2d 381 (1958), or to lease it, Tizer v. Tizer, 162 Md. 489 , 160 A. 163 (1932). Similarly, both spouses must join in an action for damages to property which they own by the entirety, 2 Poe, Pleading and Practice § 428, at 18 (6th ed. 1970) not only because of the way title is held, but because Maryland may require on motion by a defendant that even tenants in common be joined as plaintiffs in an action ex delicto for damage to real property, Gent v. Lynch, 23 Md. 58, 64 (1865). The same rule applies in actions ex delicto where personal property is involved, Koch v. Mack Motor Truck Corp., 201 Md. 562, 574 , 95 A.2d 105 (1953). We are mindful that Parish v. Maryland & Virginia Milk Producers Ass’n, 250 Md. 24, 100-01 , 242 A.2d 512 (1968) and Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197 , 4 A.2d 757 (1939) may contain intimations to the contrary, but they must be read in the factual context of those cases.” 265 Md. at 2-3 , 288 A.2d 146 .

In State v. Friedman, 283 Md. 701 , 393 A.2d 1356 (1978), Judge Digges said for the Court: “Among the additional incidents of entireties property are several that» have special significance here. Included are the doctrines that property possessed in this fashion cannot be disposed of by one spouse without the consent of the other, Ades v. Caplin, 132 Md. 66, 69 , 103 A. 94, 95 (1918), and that ‘neither has such an interest in it as can be subjected to the lien of a judgment for his debts or as can be levied upon and sold under legal process against him.’ Phillips v. Krakower, 46 F.2d 764, 765 (4th Cir.1931) (applying Maryland law); see East. Shore v. Bank of Somerset, 253 Md. 525, 532 , 253 A.2d 367, 371 (1969); Keen v. Keen, 191 Md. 31, 37 , 60 A.2d 200, 204 (1948); Jordan v. Reynolds, 105 Md. 288, 294 , 66 A. 37, 38 (1907); cf. Md. ²⁸⁹ Const., Art. III, § 43. Further, separate judgments obtained by a single creditor against a husband and wife that are based on separate transactions will not suffice to create a lien on entireties property; only a judgment obtained against both husband and wife arising out of a joint obligation may be satisfied by execution upon property held by the entireties.

See, e.g., Lake v. Callis, 202 Md. 581, 588 , 97 A.2d 316, 319 (1953) (entireties property not subject to judgment against husband and wife if wife was surety on rather than maker of note); A. Hupfel’s Sons v. Getty, 299 F. 939, 940-42 (3d Cir.1924) (applying Pennsylvania law) (assumption of husband’s indebtedness by a wife is not joint act subjecting entireties property to judgment lien); Southern Distributing Co. v. Carraway, 189 N.C. 420 , 127 S.E. 427, 428-29 (1925) (when husband only secondarily liable on debt, property held by entireties not subject to attachment since judgment not rendered on joint obligation); cf. Frey v. McGaw, 127 Md. 23, 25 , 95 A. 960, 961 (1915).” 283 Md. at 705-06 , 393 A.2d 1356 . In Beall v. Beall, 291 Md. 224 , 434 A.2d 1015 (1981), Calvin and Cecelia Beall, husband and wife, purchased property as tenants by the entireties. In 1968 they granted Calvin’s cousin, Carlton, a three-year option to purchase a part of the land. The option was extended for five years.

Later an addendum was executed in a legally ineffective attempt to extend the option for three more years. Calvin died in 1977. In May 1978, Carlton indicated to Cecelia that he was exercising his “option” to purchase the property at the price established in 1968. She refused to sell at that price.

Carlton then sued for specific performance. We held that Cecelia was not required to convey the property to Carlton because the bare offer to sell had lapsed upon the death of Calvin. Beall, 291 Md. at 235 , 434 A.2d 1015 . To reach this conclusion we enunciated a “team theory” approach to the tenancy by the entireties estate.

The Court noted: “[W]hen a husband and wife act together with respect to property held as tenants by the entirety, they are required, under traditional legal principles, to be of one ²⁹⁰ mind. Calvin and Cecelia signed a 1975 addendum not in their purely individual capacities but as a team. They acted together in making but a single offer to convey. The correct focus, then, is not upon the individual powers and capacities of Calvin and Cecelia with respect to their survivor interests, but upon the powers and capacities of each in their respective roles as tenants by the entirety.” 291 Md. at 234 , 434 A.2d 1015 (footnote omitted).

In applying this theory to the facts at bar, Judge Cole stated for the Court: “Viewing the offer of tenants by the entirety as being made by a team rather than the two individuals who make up this team provides a solution in the instant case. The continuation of an offer made in this fashion depends upon the continuous assent of both tenants, for neither can continue an offer to sell without the continued assent of the other. Here, in the absence of consideration to support an option, the vitality of the offer made by Calvin and Cecelia depended upon the continued assent of each; upon Calvin’s death, his assent was no longer viable. Hence, the offer lapsed upon the death of Calvin Beall.” 291 Md. at 235 , 434 A.2d 1015 .

In summary, the tenancy by the entireties estate as it currently exists in Maryland has the following pertinent incidents: the husband and wife take the tenancy by the entireties property not by moieties but by the entirety; each spouse has an equal right to income derived from the tenancy by the entireties property but no right to compel an accounting during marriage, see Howard v. Howard, 245 Md. 182, 185 , 225 A.2d 456 (1967); and neither spouse may lease, dispose of or encumber land held as tenants by the entireties without the consent of the other. With regard to this last characteristic, several cases in Maryland have confronted the issue of whether the action of one spouse, which served to dispose of part or all of tenancy by the entireties property, was either expressly or implicitly authorized by the other, non-acting spouse. For example, in ²⁹¹ Kvedera v. Mondravitzky, 145 Md. 260 , 125 A. 591 (1924), husband and wife owned property as