Lang v. Wilmer

Thomas, J., delivered the opinion of the Court. The hill of complaint in this case, which wa"s filed by the appellee “in his own right and on behalf of a.11 creditors of the respective defendants, who* may come in and share the costs of this cause,” against the appellants, Charles F. Lang and Henrietta Y. Lang, his wife, Albert Lang, August Lang and the Ninth West Columbia Building'Association of Baltimore City, alleges (1) that, the- appellee obtained a judgment by confession against Charles Lang for the sum of $59.97, and costs, with interest from May 31st, 1901, which was duly recorded on June 2nd, 1901, in the Superior Court of Baltimore City. (2) “That on or about the 3rd day of November, 1890, a conveyance was recorded among the Land Records of Baltimore City in the office of the Superior Court in Liber J. B. No. 1317, folio 100, etc., of a certain leasehold property known as No. 764 St. Peters street, from Charles Lang, grantor, to Charles Lang and Maria Lang, his wife, grantees—said conveyance containing these words— ‘grants unto' Charles Lang and Maria Lang, his wife, their personal representatives and assigns’ * * * ‘To have and to hold the said described lot of ground and premises unto and to the use of said Charles Lang and Maria Lang, his wife, and unto the survivor’s personal representatives and assigns.’ ” (3) That Charles Lang died intestate on the 7th of September, 1906, “leaving no real or leasehold property or interest in other than his interest in the property refereed to in paragraph two”; that his said widow and his next of kin “defaulted as to an administration” on Charles Lang’s estate, hut that Maria Lang assumed possession of the “entire estate” in the leasehold property, No. 764 St. Peters street, as her own property, and so dealt with it as stated in paragraph 4 of the bill. (4) That immediately prior to the death ²¹⁷ of Maria Lang, on September 23rd, 1907, she attempted to convey the property, hy deed dated the 19th of September, 1907, and duly recorded among the Land Records, etc., to her son, Charles E. Lang, and Henrietta V. Lang, his wife, “by the1 entireties.” (5) That on September 19th, 1907, Charles F. Lang and his wife executed a mortgage of said leasehold property, which was duly recorded, to the Hinth West Columbia Building Association of Baltimore City to secure the payment of $800.00.

(6) That the plaintiff is advised that the conveyance to Charles Lang and Maria Lang, his wife, “passed nothing; or if anything at all, only an in-determined moiety interest in said leasehold property to Maria Lang1, and not a survivorship in the whole property, which according to the terms of said conveyance gives the said leasehold property to the ‘survivor’s personal representatives and assigns.’ ” (7) That he, the plaintiff, on the 8th of February, 1907, “recovered a judgment fiat executio/’ on bis said judgment, “against Maria Lang, Albert Lang and Charles F. Lang, personal representatives of Charles Lang, deceased, and said judgment fiat was duly recorded on or about the 9th of April, 1907, in the Superior Court of Baltimore City.” (9) That so far as the plaintiff knows, the surviving children of Charles Lang and Maria Lang are Charles F. Lang, Albert Lang and August Lang. (10) “That your orator is a judgment fiat creditor of said Maria Lang, now deceased, and of Charles F. Lang and Albert Lang, as aforesaid; and that he is a judgment fiat creditor of August Lang in the sum of $13.05, with interest from the 20th day of April, 1903, and costs $2.60, and counsel fee of ten dollars, with waiver of all exemption and other laws, which judgment has been duly recorded in the Superior Court of Baltimore City in Magistrate’s Judgment Records, Liber S. C. L. Ho. 71, folio 550, etc.; and that he is, also, a judgment creditor of Henrietta Y. Lang, the wife of Charles F. Lang, in the sum of $32.49 with interest from September 29th, 1908, and costs $4.23 and $.25 recording fees, duly ²¹⁸ recorded in the Superior Court of Baltimore City in Magistrate’s Judgment Records, Liber S. C. I*. Eo.- 52, folio 306,” etc. (11) “That your orator’s respective judgment liens aforesaid are liens upon the estate of Charles Lang, deceased, in the said leasehold property Eo. 764 St. Peters street, as well as liens upon any part or share of said property claimed by or otherwise distributable to any of said judgment debtors aforesaid.” (12) That the plaintiff is without an adequate remedy at law. The bill prayed the Court, (1) to decree that said leasehold property Eo. 764 St. Peters street “is subject to the liens of the respective judgment debts of said respective persons, due to your orator, and to other creditors who may come in to this cause, as aforesaid, by the priorities.” (2) “That the aforesaid deed of conveyance from Charles Lang 1o himself and Maria I/ang, his wife, be decreed to be null, void and of no effect to pass a joint estate nor an estate by entireties.” (3) That the deed of said property from Maria Lang to Charles F. Lang and Henrietta V, Lang, his wife, be decreed to be null and void.

(4) That the mortgage to the Building Association be declared void except as to the share or interest of Charles F. Lang in said leasehold property. v (5) That the “Court take jurisdiction of said leasehold property * * * and appoint a trustee to sell” the same, “and that the proceeds be distributed under the direction of the Court, to such persons as may be entitled thereto'.” Charles P. Lang and Henrietta V. Jiang, his wife, and the Building Association demurred to the bill on the following-grounds: (1) that the plaintiff had not státed such a case as entitled him to any relief against them; (2) that the plaintiff had an adequate remedy at law, and (3) that the judgments referred to in the bill were barred by the statute of limitations. This appeal is from the order of the Court below overruling the demurrer. . The averments of the bill are very indefinite, but apparently the theory upon which the bill was filed is that the ²¹⁹ deed of November the 3rd, 1890, from Charles Lang to Charles Lang and Maria Lang, his wife, was either totally void, or was only effective to convey to Maria, Lang an undivided one-half interest in the property mentioned. The deed is not set out in full in the bill or filed as an exhibit, but judging from the part of the premises and the habendum quoted in the bill, it is clear that if the property had been so conveyed by a third person to Charles Lang and Henrietta V. Lang, his wife, the grantees would have held the property as tenants by the entireties, not only because the conveyance was to them jointly, but because the habendum clearly indicates that the survivor was to take.

Craft v. Wilcox, 4 Gill, 504 ; Marburg v. Cole, 49 Md. 402 ; Fladung v. Rose, 58 Md. 13 . It is said in 13 Cyc. 527: “A person can not convey to himself alone, and if he makes-.a conveyance-to himself and others the latter only will take as joint tenants.” In support of the text, the author cites Camerson, Marshall & Barnett v. Steves, 9 New Brunsw. 141. The same case is referred to in Note 1, page 109 of Volume 9, Am. & Eng. Ency. of Law, where it is said: “In Cameron v. Steves, 9 New Bruns. 141, it was held that a man can not convey land to himself, and therefore a deed from A. to B., C. and himself, and their heirs, being inoperative as to A., vested the whole estate in B. and C. as joint tenants- Delivering the- opinion of the Court, Carter, C. J., said: ‘It is laid down in Perkins, that a feoffment, with livery from A. to A. and B., vests the whole estate in B., for A. could not make livery to himself; therefore, by virtue of the livery to B., he became enfeoffed of the whole.’ The reason of this case would not seem to apply equally to statutory conveyances where no livery is required, and it may be doubted whether a man could enfeoff another of an undivided share of an estate to be held with the feoffor.

But there is another principle which would seem applicable to this case, under which the whole estate would vest in Cameron and Marshall. In Sheppard's Touchstone ²²⁰ (a book of very high authority), at page 82, it is laid down: ‘If a deed be made to one that is incapable, and to. others that are capable, in this case it shall enure only to him that is capable. (And if they were to be joint tenants, the person who is capable shall take the whole; but if they were to be tenants in common, he shall have only his particular share.) ’ ” In the case of Bassett v. Budlong, 18 Am. St. Rep. 404 , which was an action of ejectment to recover certain lands, William JEL Budlong, the owner of the. fee in the property, executed and delivered to his wife, .Annette Budlong, a quit claim deed, by which he purported to convey the property to her, her heirs and assigns forever.

Eollowing the habendum clause of the deed was the following proviso: “Provided always, and this indenture is made (in all respects) upon these express conditions and reservations, that is to say: 1. It is reserved that said party of the second part shall not; at any time during the lifetime of the said party of the first part, convey to any person or persons, by deed, mortgage, or otherwise, the whole or any part of the said premises^ as above described, without the written assent of the said party of the first part, or his joining in such conveyance. 2. It is further reserved that in case of the decease or death of the said Annette Budlong, party of the second part, at any time before the decease or death of the said William IT. Budlong, party of the first part, then in such case, and upon such decease, the said premises-, as above described, with all and singular hereditaments and appurtenances thereunto belonging or in any way appertaining shall forthwith, upon such decease, revert back unto the said William H. Budlong, of the first part, and to his assigns forever.” Budlong’s wife died in April, 1886, and he died in June of the same year.

Previous to his death he devised the land so conveyed to Bertha M. Budlong and Bassett, a brother, and Beeman, a nephew of Annette Budlong, her only heirs at law, brought the suit. The Circuit Court held that the plaintiffs were entitled to recover, but the Michigan Supreme ²²¹ Court reversed the judgment, and in the course of its opinion said: “Every deed or contract in writing is supposed to express the intention of the parties executing it, and when the object or purpose of such deed or contract is called in question in a court of justice, the first inquiry is, 'What is the intention of the parties, as expressed in the written instrument?’ It is very plain, upon the face of the instrument, that Mr. Budlong did not intend to convey to his wife the title to the premises in fee simple absolute. She was precluded from conveying in any manner the premises described without his written assent, or joining in the conveyance; and if she died before he did she was to have no further interest in the land. If he died before she did, then the title in fee simple absolute should pass and become vested.

Such is the apparent intention of the parties, as expressed in the deed. It is the duty of the Court to so construe the instrument as to carry out the intent of the parties making it, if no legal obstacle lies in the way. * * * We do not think it is necessary to resort to the surrounding facts and circumstances in order to discover the intent of the parties. If, however, we look to the surrounding facts and circumstances, we find them all affording evidence of the intent expressed in the instrument. * * * When it is considered that he was a farmer and a householder, and continued his residence upon the premises until his death, and retained the use and enjoyment of his personal property, it is evident that by executing the deed to his -wife he did not intend to part with the title to his real estate unless the contingency should occur of his dying before his wife died. That event did not occur, and the estate never vested in his wife.

Tlie condition in the deed that his wife should not convey or mortgage the land without his