The facts on this record are stated in the decision of the court. They present this situation. A and B, his wife, are seised and possessed as tenants by entireties of X, a lot of land; and C and D, his wife, are seised and possessed as tenants by entireties of Y, a contiguous lot of land. These lots are improved by a building which covers both lots. Although the building is upon both lots, the division line between lots X and Y is the property line dividing the ownership of the building, so the improvement, which is a part of the realty, is held according to the respective boundary lines of the lots. B, the wife of A, D, the wife of C, and E formed a copartnership *Page 497 for the purpose of carrying on a business in the building, and, for that purpose, A and B, his wife, and C and D, his wife, executed in writing and delivered to B, D, and E a lease of lots X and Y for a definite term, upon a specific yearly money rent, payable monthly by B, D and E, the tenants, to A, B, C, and D, the landlords. It has been determined by this court that this lease is invalid, and the reasons are clearly stated by Judge Digges, who wrote the prevailing opinion.
The argument is that one seised and possessed in severalty of a parcel of land cannot make a valid demise of the parcel to himself any more than he could a grant to himself; and that the lease in the present instance having been made by four tenants by entireties to the wives of the two husbands and E, a third person, no leashold estate was created, because the husband and wife, in contemplation of the common law, are but one person, and hence they take, not by moieties, but are both seised of the entirety, the survivor to take the whole; and, therefore, the husband and wife cannot grant to the other an estate of which that other is not already seised.
The application of this reasoning to the present record involves, it is submitted, a two-fold fallacy.
The subject-matter of the demise is not single but compound, since it is not one parcel of land which the four lessors attempted to demise, but a combination of two adjacent, but separately owned, parcels. Hence, there was let one parcel of land in which neither pair of spouses had any interest or estate. B, one of the lessees, was a tenant by entireties in lot X, but had neither estate nor interest in lot Y, and, conversely, D, one of the lessees, was a tenant by entireties in lot Y, but had neither estate nor interest in lot X; and E, the third lessee, had neither interest nor estate in either of the lots X and Y. It follows that a demise of lots X and Y by A and B, who were seised as tenants by the entirety of lot X, and by C and D, who were seised as tenants by the entirety of lot Y, to the lessees, B, D, and E, was not a demise of an estate in land which was owned by the four lessors either in common or as joint tenants, or, exnecessitate *Page 498 rei, as tenants by the entirety; and, therefore, the letting to B, D, and E was not an attempt to create a less or inferior estate or interest in the same land of which the lessees were seised or possessed by an estate in common, in joint tenancy, or in tenancy by entireties. In short, the letting of lots X and Y to B and D did create in these lessees a leasehold interest or term in one of the parcels of land in which they, jointly or singly, before had no interest or estate whatsoever, and in E, the co-tenant of B and D, an interest or term in both parcels of land in which he had theretofore no interest or estate of any kind. The condition for the operation of the principle invoked by the majority opinion does not seem to exist.
The second fallacy grows out of a failure to recognize that, where the lands or estates therein are not held in severalty but by two or more persons having undivided interests which involve, or may involve, a co-possession of the land, these persons, as between themselves, are each entitled to a share of the rents, issues, and profits. Tiffany on Real Property (2nd Ed.), sec. 191; Williams on Real Property (21st Ed.), 136; 4 Kent'sCommentaries, 359. If, however, the co-owners are husband and wife deriving their title under the same instrument, the husband, having in common law the right to control and dispose of his wife's land during his life, was entitled to all the rents and profits of land held by entireties, and could convey the land so as to divest his wife of all right of possession during his life, but by statute the husband's right is now so limited, and that of the wife enlarged, that the husband can no longer assert an exclusive right to the rents and profits or divest his wife of the right to share therein (Tiffany on Real Property, 2nd Ed., sec. 194, p. 652), but the wife has a right to share equally with the husband in the rents and profits (Masterman v. Masterman,129 Md. 167, 173-179, 98 A. 537). The effect, therefore, of the statutes is to enable certain things to be done which could not be done at the common law. Cochrane v. Cochrane, 139 Md. 530,532-534, 115 A. 811. And compare Woodfall on Landlord andTenant (21st Ed.), 54, 55. *Page 499
The Constitution (1867) of Maryland expressly declares that the property of the wife shall be protected against the debts of husband. Article 3, § 43, of Constitution, vol. 1, p. 100 of Code. Pursuant to this mandate, the Legislature has enacted appropriate laws which are found in article 45 of the Code. These statutes have been held not to affect the nature of an estate by entireties at the common law. Marburg v. Cole, 49 Md. 402, 412,413; Fladung v. Rose, 58 Md. 21; McCubbin v. Stanford,85 Md. 390, 37 A. 214; Brewer v. Bowersox, 92 Md. 572, 48 A. 1060;Clark v. Wootton, 63 Md. 113, 117-119; Jordan v. Reynolds,105 Md. 288, 293, 66 A. 37. However, the husband and wife are distinct and individual persons, and, as early noted in Fladungv. Rose, 58 Md. 13, 24, the legal unity of man and wife, by reason of statutory changes with respect to their relative rights and disabilities, does not exist precisely as it did at common law. Masterman v. Masterman, 129 Md. 167, 173, 175, 98 A. 537;Cochrane v. Cochrane, 139 Md. 530, 532-534, 115 A. 811. The legal fiction of the oneness of the husband and wife could not destroy their several individuality, nor deny that the use, rent, or yield of the land or personal property held by entireties was, during their joint lives, susceptible to an ultimate several possession, enjoyment, or ownership by the spouses, as they would jointly determine, without this appropriation affecting the nature of their estate in the entirety, and so was not adverse to their joint estate. With the bestowal of the right of a wife to the enjoyment of her separate property, and the statutory removal of the disability of a married woman to contract, and her existing right to sue even her husband, in an action excontractu at law or in a suit in equity, no barrier remained to bar the wife from as complete and equal an enjoyment of an estate by the entirety as that possessed by the husband. So, it is a logical consequence of the legislation with respect to married women, and the nature of their concurrent estate, when a tenancy by entirety exists, that, with reference to the rents, issues, and profits of the subject of the tenancy, there is a right of gift from one spouse to the other (Scheidt v. Schermerhorn,133 Md. 468, 471, 472, *Page 500 105 A. 581; Meyers v. Loan Sav. Assn., 139 Md. 607, 612, 116 A. 453;Hillwood v. Hillwood, 159 Md. 167, 174, 175, 150 A. 286), a right of division between them (Masterman v. Masterman,129 Md. 167, 176-179, 98 A. 537; Whitelock v. Whitelock, 156 Md. 115,122, 123, 143 A. 712; Brell v. Brell, 143 Md. 443, 450, 451,122 A. 635), and a right to contract with each other or with third parties. Abrams v. Eckenrode, 136 Md. 244, 249,110 A. 468; Code, art. 45, sec. 20. So, tenants in common and joint tenants, in the enjoyment of their respective estates and not in their destruction, may so act, as, by way of example, one tenant may make a lease to his co-tenant. In Tiffany on Landlord andTenant, sec. 71, at p. 407, Mr. Tiffany, with authority and customary clarity, writes: "A joint tenant or tenant in common may demise his share to his cotenant, thus depriving himself of the right to share in the possession and profits of the land during the term of the demise, and creating the relation of landlord and tenant between them." Tiffany on Real Property (2nd Ed.), sec. 197, p. 673, sec. 198, p. 677; Taylor onLandlord Tenant (8th Ed.), secs. 114-116; Woodfall onLandlord Tenant (21st Ed.), 18; Co. Litt. 186A; Bac. Abr.Leases (I) 5.
It would seem that a joint tenancy is a close analogy to the case at bar, since an estate by entireties is essentially a joint tenancy except as modified by the joint and concurrent tenants being husband and wife, who by the doctrine of the common law are one person. The statutes, however, relating to married women, and their property and contractual rights, have removed, interalia, a former disability during the coverture of the wife, by providing that a married woman may contract with her husband or with any other person or persons in the same manner as if she were a feme sole, and upon all such contracts, partnership, or otherwise, a married woman may sue and be sued as fully as if she were a feme sole. Cochrane v. Cochrane, 139 Md. 530, 532-534,115 A. 811; Furstenburg v. Furstenburg, 152 Md. 247, 249-253,136 A. 534; Code, art. 45, secs. 21, 17, 5; and see art. 71, sec. 9; art. 56, sec. 43; art. 47, sec. 35. The creation of the relation of landlord and tenant between the husband and the wife, *Page 501 with reference to the whole tract of land held by them as tenants by entireties, is the formation of a contract of lease (grant) between them whereby the undivided interest of one tenant is demised to the other, so that thereupon the joint possession of the land by both spouses becomes the exclusive possession in enjoyment of a particular spouse for an agreed term which is, however, subject to the effect upon the term of the death of either spouse.
This contract is within the language of the statute, and, by the joint contract of the husband and wife, creates a lease, which is simply one form of enjoyment of the right (unity) of possession of both tenants in the whole property without destroying any of the essential unities of an estate by entireties, because the possession of one tenant under the demise by the joint agreement of both is referable to the possession of the lessors by virtue of the lessors' estate in the land.
A due recognition of the statutory modification of the mutual rights and incapacities of the husband and wife at the common law would, it seems to the writer of this dissent, compel a different conclusion from that reached by the court in the case at bar, particularly as the contractual rights of a third party are involved, since the third lessee is a stranger.