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 necessity of an Act of an Assembly, and that it embraced every portion of the property. The matter which was the subject of consideration in that case was a judgment in favor of husband and wife, which they held by the unity of interest, which is a consequence of the matrimonial relation. By the law, the husband had the right to alien it, but nevertheless, unless he saw fit to do so, the wife’s interest existed, and it would have survived to her in case of his death in her lifetime. The constitutional protection is in the words of the Act of 1853, chapter 245. This Act did not impair or alter the marital lights of the husband in his wife’s property, but it placed it beyond the reach of his creditors. Schindel v. Schindel, 12 Md. 313 ; Plummer v. Jarman, 44 Md. 637 ; Keller v. Keller, 45 Md. 276 . By the construction given to it the husband might have an interest in his wife’s property, but it was not subject to his liabilities. In Clark v. Wooten we decided that the judgment could not be subjected to the husband’s debts, because thereby the wife’s undivided entirety of interest in it would be destroyed, and *391 she would be deprived of the protection which the Constitution intended to give her. The reasons for the conclusion to which the Court came will be found stated in the report of the case; and they need not to be repeated now. It appears to us that the present case ought to be decided in the same way. Mrs. Stanford’s rights are indefeasible by any deed of her husband, and cannot be subjected to any of his debts.

(Decided March 31st, 1897.)

Order affirmed with costs.