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chantable title, as will enable them to enforce specific performance against the purchaser, free and clear of an outstanding judgment against the husband. In other words, whether the husband's interest in case of tenancy by the entirety can be subjected to the claims of his creditors during the life of the wife, and whether the right of execution is suspended during the life of the wife, but enforceable on her death.

The facts are undisputed, and the question arises upon a bill in equity, filed by the husband and wife against the purchaser, asking for the specific performance of a contract of sale dated the 16th of October, 1906, for the purchase of certain leasehold property, situate in Baltimore City, held by the husband and wife, as tenants by entireties. The defendant by his answer admits the allegations of the bill to be true, but denies the relief asked by the bill, upon the ground that on the 24th day of June, 1903, a certain August Strauff obtained in the court of common pleas of Baltimore City a judgment against George A. Reynolds, one of the plaintiffs in the case, for the sum of $950, and this judgment is still unpaid and unsatisfied, that the judgment is a lien upon the property described in the contract of sale, and that the title to the property, in consequence thereof, is not good and marketable as the contract of sale required it to be. And for this reason he refused to pay the purchase price and accept a deed. The case was heard on bill, answer, and exhibits, and, from a decree requiring the defendant to comply with the contract of sale this appeal has been taken.

The character of an estate held by tenancy by entireties, similar to the one here in controversy, has been settled by numerous decisions of this court. In McCubbin v. Stanford, 85 Md. 380, 37 Atl. 214, 60 Am. St. Rep. 329, where land was owned by a husband and wife as tenants by entireties, and was mortgaged by the husband to secure his debts, it was held, upon foreclosure proceeding, that, since one tenant by entireties cannot alien the property so as to infringe the rights of the other, the mortgage by the husband could not affect the rights of his wife, and, under Const. art. 3, § 43, declaring the property of the wife shall be protected from the debts of the husband, the purchaser of the husband's interest is not entitled to possession of the property as against the wife, because her undivided entirety of interest in it would thereby be destroyed, and she would be deprived of the protection given her by the Constitution. In Clark v. Wootton, 63 Md. 113. where a judgment was obtained by husband and wife against a railway company, it was held that the judgment could not be attached for a debt due by the husband, being exempt from execution in virtue of section 43 of article 3 of the Constitution, which provides that the property of the wife shall be protected from the debts of the husband. And

in Brewer v. Bowersox, 92 Md. 569, 48 Atl. 1060, it is said, after a review of the cases upon the subject: "It is not because a conveyance or gift is made to husband and wife as joint tenants that the estate by the entireties arises, but it is because a conveyance or gift is made to two persons who are husband and wife; and since, in the contemplation of the common law, they are but one person, they take, and can only take, not by moieties, but the entirety. The marital relation, with its common-law unity of two persons in one, gives rise to this peculiar estate when a conveyance or gift is made to them without restrictive or qualifying words; and they hold as tenants by the entirety, not because they are declared to so hold, but because they are husband and wife. This estate, with its incidents, continues in Maryland as it existed at the common law. It differs materially from all other tenancies. The right of survivorship, which is one of its chief incidents, cannot be destroyed, except by the joint act of the two, and upon the death of either the other succeeds to the entire property or fund."

Applying the principles enunciated in these cases, we cannot see how the judgment in this case can be regarded, in any legal sense, as a lien upon the property in question, during the life of the wife. The law is well settled in this state that judgments create liens only because the land is made liable by statute to be seized and sold on execution. A judgment creditor stands in the place of his debtor, and he can only take the property of his debtor subject to the charges to which it was justly liable in the hands of the debtor at the time of the rendition of the judgment. Valentine v. Seiss, 79 Md. 187, 28 Atl. 892; Morton v. Grafflin, 68 Md. 545, 13 Atl. 341, 15 Atl. 298; Hartsock v. Russell, 52 Md. 619. An "execution" is a lien on personal property only because the personal property can be sold in satisfaction of the execution. Eschbach v. Pitts, 6 Md. 71; Hanson v. Barnes, 3 Gill. & J. 359, 22 Am. Dec. 322; Harris v. Alcock, 10 Gill. & J. 226, 32 Am. Dec. 158. It seems, therefore, to be clear, both upon reason and authority, that the judgment in this case is not a lien upon the property, in the lifetime of the wife. There is nothing that can be seized and sold under an execution upon the judgment. Property held by this tenure cannot be sold without the joinder of the wife (McCubbin v. Stanford, supra), and the judgment creditor can acquire no greater rights than those possessed by the judgment debtor (Valentine v. Seiss, supra; Clark v. Wootton, supra; Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266; Samarzevosky v. City Pass. Co., 88 Md. 479, 42 Atl. 206).

The case of Corinth v. Emery, 63 Vt. 505, 22 Atl. 618, 25 Am. St. Rep. 780, is directly in point. In that case, it was held that a husband has no interest in either the fee or the usufruct of real estate deeded to himself and wife jointly which can be taken in execution for his sole debts. In Almond v. Bonnell,

76 Ill. 537, it was held, where land is held by husband and wife as tenants by the entirety, as at the common law, the sale of the same on execution against the husband, followed by a sheriff's deed, will fail to pass any title whatever. The case of Chandler v. Cheney, 37 Ind. 391, is an express decision on this point. The court said there can be no partition between tenants by the entireties; while such an estate exists, no interest in it can be sold on execution for the debts of the husband or wife. From the nature of the estate and the legal relation of the parties, there must be unity of estate, unity of possession, unity of control, and unity in conveying or incumbering it. A mortgage upon such an estate executed by the husband alone is void. There are a class of cases, interpreting the statutes and legislation, in some of the states, which hold that the husband has a right to mortgage his interest which is a right to the use of an undivided half of the estate during the joint lives and to the fee in case he survived his wife, and, by the foreclosure and sale, the plaintiff acquired this interest and became a tenant in common with the wife, subject to her right of survivorship. These cases, however, are in direct conflict with the decisions of our own state, and are against the weight of authority upon this question.

The result of a decision according to the appellant's contention would practically destroy the wife's estate and turn her entirety into a joint tenancy or tenancy in common with the purchaser, under either a mortgage sale, or a sale under an execution, on a judgment. An insuperable objection to the position urged by the appellant, here, is the provision of our Constitution (section 43, art. 3), which declares that the property of the wife shall be protected from the debts of the husband. If the judgment creditor possesses a lien against this property, he could collect the debt by an execution, take away the wife's property without her consent, and thereby destroy the sale of the estate as it now stands. To hold the judgment to be a lien at all against this property, and the right of execution suspended during the life of the wife, and to be enforced on the death of the wife, would, we think, likewise incumber her estate, and be in contravention of the constitutional provision heretofore mentioned, protecting the wife's property from the husband's debts. It is clear, we think, if the judgment here is declared a lien, but suspended during the life of the wife, and not enforceable until her death, if the husband should survive the wife, it will defeat the sale here made by the husband and wife to the purchaser, and thereby make the wife's property liable for the debts of her husband.

In Logan v. McGill, 8 Md. 469, it was held, in the state of the law at that date, that Acts 1841, c. 161, does not destroy the tenancy of the curtesy, but suspends the right of execution during the life of the wife leaving

the judgment lien perfect on the life estate of the husband, to be enforced on the death of the wife. But the tenancy by the curtesy no longer exists in this state by reason of subsequent legislation, and a statutory life estate has been substituted for the commonlaw tenancy by the curtesy. Snyder v. Jones, 99 Md. 696, 59 Atl. 118. We have been referred to no case in this state, and none can be found, where it has been held that a judgment, such as the one here sought to be enforced, has been declared to be a lien upon an estate possessing the qualities and character incident to an estate by the entireties. In Vinton v. Beamer, 55 Mich. 561, 22 N. W. 40, it is said: "In an estate by the entirety the husband and wife take the same estate, the same interest, and it cannot be separated. The right of the one is the right of the other. Neither can by a separate transfer affect the rights of the other or his own. What would defeat the interest of one would also defeat that of the other."

We therefore hold, according to the spirit and policy of our law, that the judgment creditor has no lien upon the property conveyed by the appellees to the appellant in this case. There being no llen under the judgment, the purchaser will take a good and valid title by the joint deed of husband and wife.

The decree requiring the specific performance of the contract of sale will be affirmed. Decree affirmed, with costs.

(105 Md. 113)

HORNER v. BELL et al.

(Court of Appeals of Maryland. Feb. 28,

1. RECEIVERS DEFENDANT.

1907.)

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Where heirs representing one-third of an estate sued to set aside conveyances of stock, land, etc., as having been obtained from decedent through undue influence, and did not allege defendant's insolvency, and he alleged under oath that he paid par for the stock, there being no evidence to the contrary, and asserted his abundant ability to meet any liability that might be established against him, and heirs representing two-thirds of the estate adopted his answer and maintained the validity of the conveyances, a receiver was improperly appointed to take charge of the land, etc.

2. JUDGMENT - SETTING ASIDE CONVEYANCE CONCLUSIVENESS.

An adjudication setting aside a conveyance by decedent to defendant as having been obtained through undue influence was not conclusive of defendant's rights under a conveyance of the same property made after another conveyance between the same parties.

Appeal from Circuit Court No. 2 of Baltimore City; Pere L. Wickes, Judge.

Suit by Elizabeth H. Bell and others against Albert N. Horner. From a decree for plaintiffs, appointing a receiver and granting an injunction, defendant appeals. Decree reversed, injunction dissolved, and case remanded.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, and ROGERS, JJ.

John P. Poe and Julius H. Wyman, for appellant. Joseph B. Seth, for appellees.

PEARCE, J. This is an appeal from a decree of circuit court No. 2 of Baltimore city, appointing a receiver to take charge of the real, leasehold, and chattel property of Elizabeth B. Hammersly, deceased (not including the Baltimore city stock mentioned in the bill of complaint), and granting an injunction to restrain the appellant, Albert N. Horner, from transferring or disposing of the said Baltimore city stock. This is a continuation of the litigation between the parties to this case which was the subject of the appeal in Horner v. Bell, 102 Md. 435, 62 Atl. 736, to which frequent reference will be required in this opinion.

The bill in this caes recites the averments of the bill in the former case, both as to the property of the said Elizabeth B. Hammersly, the persons who are her heirs at law, and the disposition of her property made, or attempted to be made, by four conveyances executed by her on July 29, 1899, which conveyances were by a decree of circuit court No. 2 annulled and set aside as fraudulent and void, and which decree was affirmed in 102 Md. 435, 62 Atl. 736. The bill further avers that Albert N. Horner on February 24, 1906, caused to be placed upon record four other conveyances, all dated December 9, 1901, purporting to be executed by the said Elizabeth B. Hammersly, and conveying respectively to the parties named in the former conveyances the identical properties described in said respective former conveyances-that is to say (1) to Elizabeth H. Bell, her granddaughter, for her life, and after her death to her children, certain leasehold property of little value; (2) to George D. Hammersly, her grandson, certain other leasehold property also of little value, both in bad condition; (3) to Mary D. Horner, wife of Albert N. Horner, and her only daughter, certain goods and chattels contained in No. 108 North Green street, and No. 2045 North Fulton avenue; and (4) to her son-in-law, said Albert N. Horner, all the residue of her estate of every kind, the consideration named in each of said deeds being "five dollars and other good and valuable considerations." The bill does not allege what is the value of the property mentioned in said conveyances, but the answers filed in the cause admit that the said Elizabeth B. Hammersly, before the execution of said conveyances, was possessed of the real and leasehold property described in the bill, and avers that its maximum value was $25,000, and also admits that before July 17, 1899, she was possessed of Baltimore city stock worth $28,000, making her total estate about $53,000. The bill further alleges that Horner procured said four conveyances to be recorded "out of time," that is, within four hours after delivery to the recording clerk, and then to be immediately delivered to him, and so prevented the plaintiffs from seeing the original con

veyances, and that they are "exact copies in their terms and substance" of the four conveyances of July 29, 1899, and of four other conveyances dated February 14, 1900, and filed with the examiner in the former case referred to; that the plaintiffs knew nothing of the execution of the four conveyances of December 9, 1901, until after their recording on February 24, 1906, and that the two conveyances purporting to be made them were never delivered to or accepted by them, and were never intended by the said Elizabeth B. Hammersly to take effect in her lifetime, and are therefore null and void; and that they had no knowledge of the execution or delivery of the conveyances referred to in this bill, and which were the subjects of adjudication in the former case, until shortly before the bill in that case was filed. The bill still further alleges that since the decision of the appeal in the former case the plaintiffs have learned that said Horner has filed with the register of Baltimore city certificates of Baltimore city stock of the par value of $28,000 owned by said Elizabeth B. Hammersly, which pretended to be transferred by her to said Horner, but which transfer the plaintiffs charge was never legally made by her and is null and void. It further charges that at the time of the execution of said conveyances and transfer of stock said Elizabeth B. Hammersly was 77 years of age, infirm in body and feeble in mind to such an extent as to render her incapable of making a valid deed or contract; that she resided with said Horner, who took advantage of her incapacity to procure said conveyances and transfer, whereby the plaintiffs would receive only a pittance of the large estate of their grandmother, instead of receiving one-third thereof in the natural course of events; that long after the execution of said conveyances of December 9, 1901, said Elizabeth B. Hammersly retained control of, and exercised all rights of ownership over, all said property, and that said conveyances and said transfer of stock were without any consideration, were never legally executed, delivered, or recorded, and should be set aside as fraudulent and void; that the two plaintiffs, together with the said Wm. H. Hammersly and Mary D. Horner, are the only heirs at law of said Elizabeth B. Hammersly, and as such are entitled to her whole estate; that said Wm. H. Hammersly without notice to plaintiffs applied for, and was granted, letters of administration upon the estate of said Elizabeth B. Hammersly, and gave bond as such administrator in the penalty of $100, and that this was done at the instance of said Horner; that Wm. H. Hammersly is a man of bad habits, an excessive drinker, incapable of properly transacting any business, and wholly dependent for supoprt upon said Horner and his wife, and that he was used by said Horner in this way to enable him fraudulently to possess himself of the estate of said Elizabeth B. Hammersly; that the plaintiffs had applied

to the orphans' court for Baltimore city for a revocation of said letters of administration on the ground of the general unfitness of said Wm. H. Hammersly for the duties of the office, and upon the special ground that his answer to the bill in the former case showed him to be a party to a conspiracy to defraud the plaintiffs of their rights in the estate of Mrs. Hammersly, but that the orphans' court refused to revoke said letters, though it required his bond to be increased to the penalty of $3,000, which conduct on the part of the orphans' court the plaintiffs allege to be a travesty upon justice, and to require the intervention of this court, in the exercise of its general jurisdiction, to assume control over the administration of said estate through a receiver to be appointed by it, and the prayers of the bill were in conformity with the character of its averments.

Separate answers were filed by each of the three defendants. That of Albert N. Horner is full and specific. He alleges that the conveyances of December 9, 1901, were her free and voluntary act, and were executed and delivered by her when she was absolutely and indisputably in possession of all her mental faculties, and that these conveyances were made to carry out a purpose long and deliberately held by her; that he had in his possession said original deeds and would produce them at the hearing, and that the recording of deeds out of place was neither unlawful nor unusual, and that the four deeds in question were executed before Edwin Erickson, a notary public, whereas the other eight deeds referred to in the bill were executed before Andrew J. Collars, a justice of the peace now dead, and that the property conveyed to the plaintiff Elizabeth H. Bell was worth $2,000, and that conveyed to George D. Hammersly was worth about $1,500. He alleged that he purchased said Baltimore city stock of the par value of $28.000 from Mrs. Hammersly; that the purchase was made in good faith, and that he well and truly paid the whole of said purchase price in cash at the full par value of said stock at different times and in different amounts between May 21, 1898, when she executed a power of attorney authorizing him to transfer said stock to himself, and the 17th of July, 1899, when said transfer was made; and that Mrs. Hammersly never exercised, or claimed the right to excercise, any control or ownership over said stock, or over any of said property after the execution of said conveyances and power of attorney. He further alleged that Mr. Hammersly acquired all of her property through a conveyance from her husband, David L. Hammersly, dated January 4, 1898, who died at a later date in the same month of that year, and that in making the conveyances mentioned in the bill she was following of her own free will and fixed purpose the precedent and example set for her by her hus band, and that she sold the Baltimore city

stock because she wished to dispose of it and use the proceeds otherwise, as she had a right to do, as she felt that what she and her husband had done for the plaintiffs in his and her lifetime was sufficient for them; that when Wm. H. Hammersly was about 18 years of age he married a dissolute woman, and one reason why Mrs. Hammersly made the conveyance to Horner was her purpose to debar her son's wife from any interest in her own property, and that her son would be taken care of by Horner and his wife. He also alleges that Wm. H. Hammersly for more than four years before the grant of letters of administration to him had ceased to use any intoxicating liquors, and was competent to discharge properly the duties of the administration. He then specifically alleges at much length that after her husband's death it was Mrs. Hammersly's fixed purpose not to make a will, but to convey her property in her lifetime to those whom she wished to enjoy it; that she was much disturbed by the litigation over the will of George R. Berry, and frequently declared her purpose to prevent controversy over her estate by disposing of it by deed and not by will, as her husband had done; and that with this view she, from time to time, reaffirmed her purpose by renewing such deeds at stated intervals. Thus her first deeds were executed July 29, 1899. Four other deeds of like tenor and effect were executed February 14, 1900. The third set of deeds of like tenor and effect were executed August 1, 1900. The fourth set of deeds of like tenor and effect were executed April 23, 1901, and on the 9th day of December, 1901, the fifth set of deeds of like tenor and effect were executed, and she died on June 4, 1902. Thus it will be seen that she executed a new set of deeds practically every six months. He alleges in his answer that he was not present at the execution of the last set of deeds, but that Mrs. Horner alone, in addition to the notary, was present at that time. This persistent execution of successive conveyances of the same tenor and effect indicates either remarkable tenacity of purpose and intelligent exercise of will on the part of Mrs. Hammersly, or equally remarkable shrewdness and skill on the part of Mr. and Mrs. Horner in devising and executing a plan to defeat the not unnatural expectations of the plaintiffs, and to possess themselves of the bulk of Mrs. Hammersly's estate. Horner further alleges that he was advised by counsel in the former case that the case made by plaintiffs was not sufficient to require of him and his wife any testimony to meet the plaintiffs' case, other than their answers to the interrogatories accompanying the bill. The answers in that case were characterized by Judge Jones as "evasive and perfunctory" and as "framed, if not with the purpose, at least with the effect, to make the burden of the plaintiffs with respect to proof as difficult as possible," and

with this language of the careful and conscientious judge whose lamented death has since occurred we do not disagree; but, in this case, heard on bill and answers, we cannot say that the defendant have not met the averments of the bill with clear and specific denials. There is no averment in this bill of the insolvency of Albert N. Horner, or that he is not of ample means to respond to any claim which the appellees may establish. The case, as now presented upon bill and answer, does not involve a decision upon the final merits, and requires us to examine with care the right of the plaintiffs, at this stage of the case, to a decree for receivers and an injunction.

The fundamental principles governing the appointment of receivers are thoroughly settled in this state, and are stated with great precision in Miller's Equity Procedure, §§ 629-634, accompanied by reference to the cases. From these numerous cases none can be selected which more succinctly and strongly state the controlling principle in this case than the case of Kipp v. Hanna, 2 Bland, 31, in which the chancellor said: "A receiver may be appointed against the legal title in a strong case of fraud, combined with danger to the property. But the court interposes by appointing a receiver against the legal title with reluctance. It must not only be morally sure that at the hearing the party would, upon those circumstances, be turned out of possession, but must see some imminent danger to the property and the intermediate rents and profits from not acting rather prematurely, and if the property should not be taken under the care of the court." In numerous subsequent cases this doctrine has been approved, and it has been repeatedly said in cases of varying character that the power of appointing a receiver is a most delicate one, and should be exercised by the court with extreme caution, and only under special and peculiar circumstances requiring summary relief. The justification for the exercise of this power is the preservation of the subject of litigation or of the intermediate rents and profits. In Blain v. Everitt, 36 Md. 81, the court said: "In such cases the averment of insolvency of the party in possession and receipt of the rents and profits is most important in making out that strong and special case of imminent danger of loss always required as essential to a departure from the old rule not to make such an appointment in any case, under any circumstances, before answer." It is obvious, therefore, that after answer, where the answer under oath fairly meets the averments of the bill, and the case is heard on bill and answer, the same rule must be applied. Accordingly in Furlong & Miller v. Edwards, 3 Md. 112, where the case was in that condition, the court said: "The only allegations in the bill that could have authorized the interference of a court of chancery in the mode prayed for were those which averred

that the defendant was in possession of the property, was selling and converting the same to his own use, that he was insolvent, and that the complainant was thereby in danger of losing his debt. These charges are unequivocally and explicitly denied, and thus the complainant has every pretended ground taken from him, upon which to rest an application for an injunction and receiver." Here the allegation is not even made. The answer however asserts that Horner is of abundant means to meet any liability which might be established at a hearing upon the merits. Moreover, two of the heirs at law of Mrs. Hammersley-Mary D. Horner and William H. Hammersly-representing as such two-thirds of her estate, adopt the answer of Albert N. Horner, and sustain the validity of all the conveyances attacked, so that the case only involves a claim to onethird of the real and leasehold property conveyed to Albert N. Horner, and one-third of the Baltimore city stock assigned to him. He could not, pendente lite, sell or encumber the real or leasehold estate, and therefore only one-third of the rents and profits are involved in this controversy. As to the city stock, the answer avers that Horner paid for it its full par value in cash, and, in the absence of any evidence whatever to contradict this averment, the answer being under oath, swears away all the equities of the bill, there being no allegation of present insolvency in the bill, or of Horner's inability to pay the purchase money for the stock at the time of the alleged purchase.

But it is contended for the appellees that the relief sought in the former case is the same sought in this case, and that the matter here in controversy is therefore res adjudicata; but we are not able to adopt this view. Much reliance for this contention seems to be placed upon the case of State v. Brown, 64 Md. 203, 1 Atl. 54, 6 Atl. 172. In that case it was sought to have declared null and void the same deed of trust, which in 62 Md. 439, in a case where the bill was filed between the same complainants and the same defendants, was declared to be good and valid. The court said: "The purpose in each case was to strike down and defeat the power of sale contained in the (same) deed of trust." But the deeds assailed in this case are not the same assailed in the former case. Those assailed in the former case were vacated and annulled, because the court held it appeared from the testimony that there was a confidential relation existing between Mrs. Hammersly and her son-inlaw; that the burden of proof to show that the deeds were the voluntary and deliberate act of the grantor had not been met by the defendants; that the physical condition of the grantor at the time of the execution of said deeds was such as to unfit her for the transaction of business without independent advice; and that for these reasons the deeds should be vacated and annulled. It does not

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