McCubbin v. Stanford

Bryan, J., delivered the opinion of the Court. McCubbin having purchased certain real estate in the city of Baltimore at a sale under a decree in equity, filed a petition for a writ of habere facias possessionem against Mrs. Stanford, who was in possession of the property. Her husband was the defendant in equity, but she was not a party to the proceeding. The suit was for the purpose of subjecting the property to the payment of a mortgage executed by the husband.

She answered the petition, and the Court pro forma dismissed it. Appeal by McCubbin. ³⁹⁰ It was stated in the petition and admitted in the answer that the real estate was conveyed to Stanford and his wife to hold by entireties. By the common law, husband and wife were considered one person. When, therefore, land was conveyed to them and their heirs, each was in contemplation of law seized and possessed of the entire estate in fee-simple, and neither could dispose of any part of it without the assent of the other.

Each was entitled to the whole by reason of the legal unity of their existence ; and consequently an alienation of any part by either one of them would infringe the vested right of the other. The common law on this point has-never been changed in this State. Marburg v. Cole, 49 Md. 411 . The forty-third section of the third Article of the Constitution declares that ‘ ‘ the property of the wife shall be protected from the debts of the husband.” We decided in Clark v. Wooton, 63 Md. 113 , that this provision of the Constitution conferred the protection upon the wife’s property without the