Schilbach v. Schilbach

Sloan, J., delivered the opinion of the Court. This appeal is from an order sustaining a demurrer to a bill of complaint, whereby the executrix of a tenant by the entireties and a son sought a decree to charge the surviving husband’s and father’s property with a lien for money paid by them, over a period of several years, for “taxes, Metropolitan District Assessment, assessments, interest on mortgage, fire insurance premiums” and other “necessary expenses for the preservation of the building, * * * which the said Millard W. Schilbach (son) and the ⁴⁰⁷ said Anna A. Schilbach (wife) were obliged to pay in order for the said Anna A. Schilbach to have a home, the expenditures made by them for the purposes above mentioned amounted to $4,383.37, and these expenditures were made with the knowledge of the said John J. Schilbach (the husband), and his acquiescence.” It is alleged that Anna A. Schilbach and John J. Schilbach, wife and husband, as tenants by the entireties, owned a tract of land, containing four acres, on the Belair Boad at Fullerton in Baltimore County, improved by a dwelling house, barn, and other buildings; that on March 13th, 1917, Anna A. Schilbach filed a bill of complaint against John J. Schilbach, praying permanent alimony, and a decree was passed thereon awarding her twelve dollars a week, subsequently reduced to seven dollars a week; that from the time of the separation, Anna A. Schilbach occupied the property, but because of the failure of her husband to pay the alimony, she got along with the assistance of her son, Millard W. Schilbach, and her niece, Flora Danek; that Anna A. Schilbach died December 21st, 1934, leaving a will, with the niece, Flora Danek, as executrix, who, with the son, Millard W. Schilbach, filed the bill praying a decree for a lien, and the appointment of a trustee to sell the property. The plaintiffs declined to amend their bill, and from an order dismissing it they appeal. It does not appear in the record, but at the argument the plaintiffs’ counsel stated that a decree in personam had -been granted for the unpaid alimony, so that it is now a lien on the property.

If for no other reason, the bill ought to have been dismissed for misjoinder of plaintiffs, as a wife and son, with respect to the wife’s interest in an entirety, have nothing in common, and no joint decree could be entered in their favor. A tenancy by the entireties is essentially a joint tenancy, modified by the common law theory that the husband and wife are one person. 1 Tiffany on Real Property, 645. Except for the fact that it cannot be defeated, ⁴⁰⁸ during their lives, without the joint action of both, the same rules of law apply to it as to any other cotenancy. At common law the husband was entitled to the rents and profits of land held by entireties, a right, however, which has been taken away