Van Royen v. Lacey

⁶⁵⁰ Smith, J., delivered the opinion of the Court. This is the third recorded trip to this Court of the controversy between these parties. See Van Royen v. Lacey, 262 Md. 94 , 277 A. 2d 13 (1971), and Lacey v. Van Royen, 259 Md. 80 , 267 A. 2d 91 (1970). The facts were fully set forth in the last named opinion.

Appellant, Irene Fetty Van Royen, holds a judgment against Robert H. Lacey, Jr. (Lacey), one of the appellees. Land formerly owned by him, his wife, and his mother-in-law as joint tenants, both of whom are appellees here, was conveyed to a straw party and then back to the wife and mother-in-law. In Lacey v. Van Royen we affirmed a determination that these two deeds were a fraud upon creditors. In the same proceeding Mrs. Van Royen moved to enforce the earlier decree.

She asked that a trustee be appointed to sell the land in question with one-third of the proceeds after deduction of costs of sale to be paid to her. In opposing this motion the appellees contended that the equity court was without power to appoint a trustee and make such a sale, that the earlier decree “nowhere define [d] the extent or character of . . . Lacey’s interest in the said property but only cancelled the effect of a certain subsequent transfer,” that the most Mrs. Van Royen was entitled to in enforcing the decree was the appointment of a trustee “to reconvey the subject property to its owners of record prior to the conveyances held to be fraudulent,” that appointment of a trustee to sell would amount to enforcement, not of the court decree in the equity matter, but of the judgment and that the remedy of Mrs. Van Royen was execution on her judgment. In their memorandum they argued that Lacey and his wife owned a one-half interest in the land as tenants by the entireties and that their one-half interest was held as joint tenants with Mrs. Lacey’s mother who owned the other one-half interest.

The chancellor (Pugh, J.) held that the earlier decree did not make a determination of the interest held by Lacey “other than to say said interest was unchanged by the conveyances ruled to ⁶⁵¹ be fraudulent.” Therefore, he denied the motion to enforce the decree. The first paragraph of the amended bill of complaint alleged conveyance of the land here in dispute “to the Defendants, Robert H. Lacey, Jr. and Mary Ann K. Lacey and Rose F. Kelly, as Joint Tenants.” The answer filed by those defendants to the amended bill of complaint said “[t]hat they admit [ted] the allegations of paragraph 1 of the Amended Bill of Complaint.” In fact in the statement of facts in their brief in the earlier appeal in this proceeding the appellees here recited conveyance “to Robert H. Lacey, Jr., Marianne K. Lacey and Rose F. Kelly, joint tenants.” Nothing was said in the circuit court or here about a half interest in that joint tenancy being owned as tenants by the entireties. The case proceeded in the trial court and here upon the basis of a contention that Lacey was not insolvent within the purview of Code (1957) Art. 39B, § 2(1) and that Lacey “owned merely bare legal title to the property,” having “merely allowed his name to be used so that a loan could be obtained at the bank at