Howard v. Howard

McWilliams, J., delivered the opinion of the Court. This case requires us to deal with a narrow question arising, for the first time, out of that ancient, “amiable fiction,” 1 the tenancy by the entireties. In her bill of complaint appellant (Hannah) alleges that she and appellee (Albert) own, by the ¹⁸³ entireties, a two story building on the first floor of which Albert, to the exclusion of Hannah, conducts a profitable bar and restaurant business. Although they still live together in the apartment on the second floor the days of wine and roses have fled and the marital ties are faint and fretful.

Albert, she says, “is enjoying a grossly disproportionate share of the fruits of the property” and he has rejected her demands for “her share of the fair rental value” of the first floor. Judge Raine sustained Albert’s demurrer without leave to amend. He thought it “interesting and * * * amazing that the Court of Appeals has never really come to grips with this problem.” It is, to be sure, interesting and perhaps “amazing,” nevertheless our consideration of Hannah’s appeal must be circumscribed by the stark, meagre facts set forth above. Hannah relies on Columbia Carbon Co. v. Kight, 207 Md. 203, 114 A. 2d 28 (1955), Elko v. Elko, 187 Md. 161 , 49 A. 2d 441 (1946) and Collier v. Collier, 182 Md. 82 , 32 A. 2d 469 (1943).

Albert elects to stand on Collier and Brown v. Brown, 204 Md. 197 , 103 A. 2d 856 (1954). In Columbia Carbon, Judge Delaplaine, in the course of his historical review of tenancies by the entireties, said: “It has accordingly been held by this Court since the enactment of those Acts [Married Women’s Property Acts, Code, Art. 45] that the wife shares equally with the husband in the income from a tenancy by the entireties.” [Citing Collier, Elko, Brown and Whitelock v. Whitelock, 156 Md. 115 , 143 Atl. 712 (1928).] Id. at 209 . Brown presented a similar situation. Judge Delaplaine there said “it is the law in this State that the wife shares equally with the husband in the income from property held by them as tenants by the entireties”, citing Whitelock, Collier and Elko .

In Elko , Judge Collins, who spoke for the Court, said: “From the allegations of the bill, the facts to be established, and under the authorities hereinbefore cited, which state that the wife shares equally with the husband in the income from property held as tenants by ¹⁸⁴ the entireties, this Court is of opinion that the appellant should share equally with her husband in the net income from the two apartments in question in the property at No. 418 East North Avenue.” Id. at 168 . Although the Court, in Collier , quoted with approval statements from earlier cases to the effect that the wife shares equally with the husband in the income from a tenancy by the entireties the chancellor’s refusal, because of the wife’s outrageous conduct, to appoint a receiver to collect rents from a business property, so owned, was affirmed. A superficial reading of the four cases just mentioned might lead one to conclude that they provide some support for Hannah’s contention. Close study reveals, however, that in none of them were the parties living together.

In Columbia) Carbon the parties were divorced. Brown is essentially a suit for separate maintenance. The Elko (s) were living separate and apart when she