Mitchell v. Frederick

Bond, C. J., delivered the opinion of the Court. Two children of a deceased woman, by a bill of complaint against a defendant who had been united with her in marriage as her second husband, but the validity of whose mar ⁴⁴ riage is disputed, and against a child of that pair, and administrators of the decedent’s estate, seek in this case a settlement of rights in property of the decedent and property standing in the joint names of herself and her supposed second husband. The respondents have demurred to the bill and from the overruling of their demurrer have appealed. The remaining child of the first marriage was made a party defendant, but she has taken no' part in the case, and no action has been taken with respect to’ her.

No- relief has in fact been asked against the administrators. The averments are that the decedent was married, first, in Baltimore in 1816, to a Joshua C. Frederick, and the complainants are two of three surviving children of that marriage; that those parents lived together from that date until the year. 1883 in Chase County, in the State of Kansas, and that then, in 1883, Frederick became insane and was confined, and remained in confinement until his death in. 1912; that when her husband became so insane, the wife returned to live in Baltimore, and in 1881 was married there to Alexander Mitchell, one of the present respondents and appellants, took the name of Mitchell, and lived as the wife of Mitchell until her own death in 1930, the respondent Carroll Mitchell being a child of that union; that the records of Chase County, Kansas, and those of the courts of Baltimore City, show no divorce or annulment of the previous marriage with Frederick; that she was still his lawful wife when she went through the marriage ceremony with Mitchell and there was no later ceremony; that she suffered a stroke of paralysis in 1926 and became of unsound mind, and incapable of transacting business, and remained so incapable until her death, over three years later. There is no averment concerning knowledge of Alexander Mitchell, or in fact of either of the parties to it, that this second marriage might be invalid. The property interests in controversy, and the remedies sought, differ; and one of the grounds of demurrer is that the inclusion of all of the parties and prayers in one proceeding renders the bill multifarious.

Three portions of property rights are to be distinguished: (1) Money, papers, ⁴⁵ effects and other personal property of the decedent’s alleged to have passed into' the possession of the respondent Alexander Mitchell and his son in 1926, when the decedent became incapacitated. The complainants seek an accounting for this property by the alleged possessors of it. (2) Eee simple property, known as 1303 Morth Charles Street, in Baltimore City, previously held in the name of the decedent alone, and now standing in the name of the son, Carroll S. Mitchell, by virtue of a deed appearing to have been executed by the decedent in 1927, but in this bill attacked as void because of incompetency in the grantor at the time of execution, and because procured by fraud. An injunction is sought against disposal or incumbering of this property during the litigation.

(3) A group of six parcels of real estate conveyed to the decedent and Alexander Mitchell as tenants by the entireties, in which the complainants by their bill claim half interests on the ground that the properties were in fact held by the pair as tenants in common. In addition, claim is made to half of the rents and income from these properties since the death of the decedent; and an injunction is sought against disposal or incumbering of them pending the litigation. Of these six properties, three were by the terms of the deeds conveyed to the pair as tenants by the entireties and to the survivor expressly, and the deeds to the other three, while describing the holdings as by the entireties, do not mention survivorship. Eour of the six properties are held in leasehold estates only, the remaining two' in fee simple.

Two of the four leasehold estates were included in the three conveyed expressly with the right of survivorship', and two in the three conveyed without specific mention of survivorship. There is no averment of the source of the money used in the purchase of any of the property mentioned in the proceedings, whether from the one or the other of the pair, or from both, and nothing can be assumed in this respect in favor of the prayers of the bill. Re Scott (1907), 97 L. T. 537; Soar v. Foster, 4 Kay & J. 152. It is first contended, in support of the demurrer, that the facts averred in the bill would not., if proved, sustain the ⁴⁶ attack on.the validity of the marriage with Mitchell, because-for all that is averred it might still be true that the deceased mother of the complainants was free to marry in 1887, as she attempted.

Unquestionably the complainants are placed under a heavy burden of proof by the attack. They must first prove an earlier valid marriage beyond any reasonable doubt, and, that proved, they will be under the necessity of overcoming the presumption that in some way the obstacle of the earlier marriage was removed, and must do so by proof shutting out every reasonable possibility that it may have been. There would be in Maryland, however, no complete bar or estoppel against the one incapable of marriage, or those claiming under her; and no valid common law marriage being possible in this state, the continued cohabitation after the alleged death of a 'former husband by an earlier marriage would not render the present parties married. Schaffer v. Richardson, 125 Md. 88, 92 , etc., 93 A. 391 ; Le Brun v. Le Brun, 55 Md. 496, 503 ; Bowman v. Little, 101 Md. 273, 287 , 61 A. 223, 657, 1084 .

But these requirements of proof need not be met in the pleadings. The pleadings need contain only a statement of the ultimate material facts relied on to meet the burden. The bill avers generally that the marriage with Frederick was a valid, subsisting marriage at the time of the later ceremony, and, specifically, that Frederick had then been for four years confined as insane, .and continued living and so confined up ten the year 1912, twenty-five years after the attempted second marriage, that in the two jurisdictions of residence of the wife, including that of the first husband, there was no divorce or annulment of the first marriage, and that there was no second ceremony of marriage with Mitchell after the alleged date of Frederick’s death. It may be that the proof intended to be presented would still leave it possible that there had been a timely removal of the bar of the first marriage — on this the court cannot say — but the averments do, in the opinion of this court, sufficiently serve the purposes of pleadings.

Invalidity in the marriage to Mitchell, if proved, could affect only three' of the six properties conveyed to the pair ⁴⁷ as tenants by the entireties, for it is. conceded that the three conveyances, which expressly attached the right of survivor-ship did carry the right to Mitchell surviving, that the properties now belong to him, and that the complainants show no right to share in them. Michael v. Lucas, 152 Md. 512 , 137 A. 287 . Whatever may be the proper description of the estates conveyed in those deeds, the intention to attach the right of survivorship is made clear, and is effectual. Even a tenancy in common may have a right of survivorship attached to it if the grantor expresses an intention that it shall be so.

Freeman, Cotenancy, sec. 12; 2 Jarman, Wills, 1561; Doe v. Abey, 1 Maule & S. 434; Taaffe v. Conmee, 10 H. L. Cas. 78; Stones v. Heurtly, 1 Ves. Sr. 165; note, 168 Law Times, 467. And see Marshall v. Security Storage Co., 155 Md. 649 , 142 A. 186 . This court has not had occasion to define property rights of parties to a putative marriage, and the views expressed in the few cases on the subject elsewhere are not uniform.

The attempted marriage being void if the averments are proved, the conveyances questioned were made to two persons not man and wife. But to say that they were made to two persons with no relationship differentiating them from any two strangers may be shortsighted. So far, at least, as the intention of the parties is to be sought as tending to fix the character or extent of the rights conveyed, the natural attitude toward each other of a man and a woman who have regarded themselves as married might give ground for inference different from that attaching to a gift or conveyance to persons who are not supposed to be married. The estate taken in such an ineffectual attempt to convey a tenancy by the entirety has been described both as a tenancy in common and as a joint tenancy, with perhaps a majority of the courts undertaking to make the classification describing it as a tenancy in common.

Wright v. Kaynor, 150 Mich. 7 , 113 H. W. 779; McKee v. Bevins, 138 Tenn. 249 , 197 S. W. 563 ; Bell v. Little, 204 App. Div. 235 , 197 N. Y. S. 674; McCallister v. Folden's Assignee, 110 Ky. 732 , 62 S. W. 538 . Mr. Tiffany’s conclusion is that the grantees “would take as tenants ⁴⁸ in common rather than as tenants by entireties, except as the intention that they shall hold as tenants by the entire-ties may be regarded as effective to create a joint tenancy, which more closely resembles a tenancy by the entireties.” 1 Tiffany, Real Property, 646. What is now called a “tentncy by the entirety” appears to have been classed in old English cases as a species of joint tenancy, or joint tenancy with added incidents for husband and wife. Note, 30 L. R. A. 305.

In Morris v. McCarty, 158 Mass. 11 , 32 N. E. 938, 939 , on an attempted grant of a tenancy by the entirety, “and not as tenants in common,” to a man and a woman not in fact husband and wife, that court said: “An estate in' entirety is an estate in joint tenancy, but with the limitation that during their joint lives neither the husband nor the wife can destroy the right of survivorship without the assent of the other party. * * * The doctrine of survivorship is the distinguishing incident of title by joint tenancy. * * * On looking at the deed under which the tenant claims, it is quite plain that the grantors intended to> create an estate in joint tenancy, as distinguished from an estate in common. The particular form of estate in joint tenancy which they contemplated fails; but they took great pains to exclude the idea of an estate in common, and the effect of the deed is to create an estate in joint tenancy, without the special feature of an estate in entirety.?’ Classification does not, however, solve the problem in this case, for it is no' part of the purpose of the law to restrict a grant to a pattern; that is, to confine it within the ordinary limits of one of the three classifications of cotenancy without regard to what the parties may desire and intend. The immunities of a tenancy by the entireties