Marburg v. Cole

Alvey, J., delivered the opinion of the Court. This is an application by the appellee to compel the appellants to specifically perform a contract of purchase of a house and lot of ground in the City of Baltimore. A pro forma decree was entered by consent against the appellants, from which they appeal. The case is presented upon bill, answer, and exhibits alone ; and the first and principal question is, what is the nature and character of the estate that was conveyed by the deed of the 10th of July, 1812, from Dallam, Marine and Perkins, to Ann Bebecca Cole and Abraham Cole, her husband ?

Both in the granting clause and the habendum of the deed the property is declared to be to “the said Ann Bebecca Cole and Abraham Cole, her husband, their heirs and assigns, in fee.” Abraham Cole has since died, and the appellants object to taking the estate under the contract with the appellee, upon the ground, among others, that the grantees in the deed just cited took distinct moieties, and that, consequently, Ann Bebecca Cole can only ⁴¹¹ convey the one moiety taken by her under the deed, and her dower interest in the other moiety : while the contract with the appellants requires her to convey, by good and sufficient deed, the entire property and estate, free from all incumbrances. i 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, hut 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, “ 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 Blac.

Com. 182. This has been the doctrine of the common law from an early period of its history, for we find the principle as stated by Blackstone laid down in Littleton’s Tenures, sec. 291, from whence it has been almost literally transcribed by all subsequent writers on estates. Co Litt., 187; 2 Cruise Dig., 492; 1 Prest. Est., 131-2; 4 Kent’s Com., 362; 1 Washb.

R. Pro., (4th Ed.) 672, and the authorities there cited. Mr. Preston, in his work on “ Estates,” vol. 1, p. 132, has said that “where lands are granted to husband and wife as tenants in common, thereby treating them without any respect to their social union, they will hold by moieties as other distinct individual persons would do.” But even this proposition has been strongly controverted, and denied to be supported by authority. Dias & Burn vs. Clover, 1 Hoffman’s Ch., 71; Stuckey vs. Keefe’s Ex’rs, 27 Penn. St., 397.

It is not necessary, however, that we should ⁴¹² decide that question in this case, as the deed does not in terms convey the estate to the grantees as tenants in common, hut simply to them as husband and wife, and their heirs, in fee. Unless then this long existing and firmly established principle of the common law, whereby the husband and wife take seisin of the entirety, be changed or modified by Statute, it is too clear for any question whatever, that the appellee, having survived her husband, has the entire and absolute estate in the property, and may sell and convey it as she may think proper. Has the common law principle been changed by Statute ? The Code, Art. 49, sec. 12, being the codification of the Act of 1822, ch. 162, provides that no instrument of conveyance shall be construed to create a joint tenancy, unless it is expressly provided that the property shall be held in joint tenancy.

But, as we have seen, the estate conveyed to husband and wife in a deed like the one before us, is not to them as joint tenants