Marburg v. Cole, 49 Md. 402

Marburg v. Cole

49 Md. 402 | Md. | 1878

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 *411convey 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 *412decide 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 at the common law, and hence the Statute just referred to does not. affect or apply to such an estate as that conveyed to husband and wife. This has been expressly so held by this Court, in the case of Craft vs. Wilcox, 4 Gill, 504. Similar Statutes to our own exist in a large number of the States of the Union, converting joint tenancies at the common law into tenancies in common, except where in the instrument it is otherwise expressly declared, and the invariable construction has been that they do not apply to or affect the peculiar estate taken by husband and wife, under a deed to them jointly. Rogers vs. Benson, 5 John. Ch., 431; Jackson vs. Stevens, 16 John., 110; Shaw vs Hearsey, 5 Mass., 521; Brownson vs. Hull, 16 Vt., 309; Thornton vs. Thornton, 3 Rand., 179; Diver vs. Diver, 56 Penn. St., 106; 4 Kent. Com., 362 ; 1 Bish. L. Mar. Women, sec. 615, and cases there cited. Nor do the provisions of the Code, Art. 45, secs. 1 and 2, authorizing a married woman to *413acquire and hold property as therein provided to her separate use. at all affect the nature of the estate conveyed to husband and wife by deed to them jointly. In reference to statutes of similar import in other States, the Courts have expressly held that they do not in any manner affect the nature of the estate which, according to the common law, the husband and wife take by a grant to them jointly ; and these decisions are based upon principle and reasoning entirely satisfactory and conclusive. Bates vs. Seely, 46 Penn. St., 248; Diver vs. Diver, 56 Penn. St., 106; Far. & Mer. Bk. of Rochester vs. Gregory, 49 Barb., 155; McCurdy vs. Canning, 64 Penn. St., 39. It follows, therefore, that the common law principle remains unaffected by Statute.

It is next objected to the appellee's title, that the deed i'rom Dallam, Marine and Perkins, should have been made directly to Perkins, inasmuch as he was reported by the trustees as the purchaser of the property. But it will be observed, that it is recited on the face of the deed that the purchase was in point of fact made for the appellee and her husband, and that they paid the purchase money. Perkins was, therefore, merely the trustee or agent of the grantees in the deed, and his joining in the deed with the trustees, the deed containing a recital of the facts, would seem to remove all possible objection to the manner of conveyance by the trastees. If, however, any real objection could be urged to the deed on the ground taken by the appellants, that objection would be effectually removed by the confirmatory deeds offered.

Then it is objected that the property has not been relieved of the incumbrance of certain mortgages made by the appellee and her husband. But as to two of the mortgages, they appear to have been regularly released oil the record by the mortgagees, and there is nothing to show that the notes mentioned in the mortgages are held by third persons, or that they were negotiable. And as to *414the third mortgage, that is not exhibited in the record, and the only evidence of its existence is found -in the answer of the appellants. If, however, there he a subsisting mortgage, unpaid, it must he discharged and the property relieved before the appellants can be required to pay the purchase money and accept a deed from the appellee, under the contract of purchase. By that contract, the ajjpellee covenanted to make a good and sufficient deed for the property, free of all incumbrances, which, of course, cannot be performed as long as there is a subsisting mortgage binding on the property.

(Decided 28th June, 1878.)

The decree appealed from must he reversed and the cause remanded, in order that it be shown whether the alleged mortgage to Ella Gr. Paca for $400, and interest, be still a subsisting charge upon the property, and if it is, that it be discharged before the appellants shall he required to pay the purchase money under the contract, and accept a deed from the appellee.

Decree reversed, and cause remanded.