Frey v. McGaw

Stockbridge, J., delivered the opinion of the Court. For the decision of this appeal it is scarcely necessary to do more than to understand clearly the facts out of which it arises in their proper relation to one another. On the 3rd of April, 1913, a judgment was entered by confession in the Baltimore City Court in favor of the appellees against George E. Frey and Jennie E. Frey, for the sum of $270. Being a judgment against joint defendants, it was an entirety.

Ewing v. Rider, 125 Md. 149 . ²⁵ At the time of the entry of this judgment George E. and Jennie E. Frey, his wife, owned as tenants by entireties, but subject to mortgage, a leasehold lot of ground on Linden avenue in the City of Baltimore. By the provisions of the Code of Public General Laws, Article 26, section 19, the entry of a judgment makes it a lien upon leasehold estates as well as real property, except as to certain enumerated estates, of which a tenancy by the entireties is not one. . An actual levy on real and leasehold property is not requisite to perfect the lien. The judgment being an entirety, and the estate of the Freys in the Linden avenue property being one by the entire-ties, the lien of the judgment attached to the property.

What does and what does not constitute a lien depends .upon the statutes of each State. In re Koslowski, 153 Fed. 823 . The case as presented is entirely different from what it would have been if the judgment had been against either Mr. or Mrs. Frey alone. This arises from the peculiar nature of an estate by entireties.

It has been repeatedly held in this State that where a judgment is recovered against one of two tenants by the entireties no lien can attach to the interest of the one, Jordan v. Reynolds, 105 Md. 288 , and eases there cited, but it has never been held in this State or elsewhere that, in the absence of statutory exemption, where there is an entire judgment against joint defendants, no lien is imposed upon estates or interests in land held by the entireties. On the 9th of February, 1911, George E. Frey filed his voluntary petition to be adjudicated a bankrupt, and two days later the present appellees, the judgment creditors of Mr. and Mrs. Frey appeared by petition in the bankruptcy proceedings and asked to be allowed to proceed upon their judgment. On February 21st, George E. Frey answered their petition, and in opposition to granting the prayer of the petition, set up the fact that he and his wife had filed a motion in the City Court to have the judgment stricken out. The motion to strike out the judgment was in fact filed on the same day as the answer to the petition.

Upon hearing, the ²⁶ motion was denied on the 13th of March following, and thereafter, on May 5th, the order of the District Court of the United States granting the appellees leave to proceed on their judgment was made absolute. A fieri facias was issued upon the judgment, on which a return of nulla bona was made. Nothing further transpired until November 7th, 1911, when George E. Frey was discharged in bankruptcy. No attempt appears to have been made by the bankrupt trustee to make claim to any interest in the Linden avenue property.

He probably regarded it as valueless for the creditors, under the doctrine announced in In re Beihl, 197 Fed. 870 , cited and adopted in Remington on Bankruptcy, section 970, page 760, as follows: “In some jurisdictions the common law rule that property held by husband and wife jointly is held in entirety, without possibility of severance, still pre-' vails. Each has only an expectancy, for upon the death of one the other takes the estate; and although the husband’s trustee in bankruptcy is undoubtedly clothed with the husband’s interest, whatever' that may be, his right to it must* await the contingency of the husband surviving the wife.” About two months after the discharge, namely, on January 26th, 1915, Jennie E. Frey- died, and by operation of law the entire estate in the Linden avenue property was then vested in George E. Frey, but it necessarily was subject to any valid ‘ outstanding liens- against the property, whether such lien was in the form of a mortgage, or a