Krone v. Linville, 31 Md. 138 (Md.)

Alvet, J.,

delivered the opinion of the Court.

The appeal in this case brings before us only so much of the decree appealed from as may affect the appellant, John B. Krone.

He contends that the decree should he reversed, mainly for three reasons:

1st. That as Mrs. Krone was but tenant for life of the land decreed to be sold, and not a joint tenant, tenant in

common, parcener, or concurrent owner thereof, with the complainant and the other parties interested in remainder, therefore, under the Code, Art. 16, sec. 99, there was no power or jurisdiction in the Court to decree either sale or partition.

2d. That because Mrs. Krone’s answer was taken separately from that of her husband, without a previous order of the Court, it should be disregarded and treated as out of the case; and

3d. That the consent of Mrs. Krone, given to the passage of the decree, without the authority of her husband, is a nullity, and that no decree could be founded thereon.

1. As to the first ground for reversal, that of want of power and jurisdiction in the Court to pass the decree, that would appear to be completely answered by the Act of 1862, chap. 156, extending the provisions of the Code. By that Act, “ In all cases where one or more persons is, or are entitled to an estate for life or years in land, and other persons are entitled to a remainder or remainders, vested or contingent, or an executory devise or devises, or any other interest, vested or contingent, in the same land, on application of any of the parties in interest, a Court of Equity may, if all the parties in being are parties to the proceeding, decree a sale or lease thereof, if it shall appear to be advantageous to the parties concerned, and shall direct the investment of the proceeds of sale, or the limitation of the leasehold interest, as the case may be, so as to enure to the use of the same parties, who would be entitled to the land sold or leased, and all such decrees, if all the persons are parties who would be entitled if the contingency had happened at the date of the decree, shall bind all persons, whether in being or not, who claim any interest in said land under any of the parties to said decree, or under any person from whom any of the parties to such decree claim; this to apply to leasehold, as well as freehold estates.” *

Such being the law, the only question in reference to the jurisdiction of the Court is, whether all the parties in being interested in the estate, are made parties to the proceedings, and the allegations and proof show it to be to the advantage of such parties that the sale should be made; and upon examination of the record, we are entirely satisfied that such is the case.

The question of distribution or investment of the proceeds of sale, except the part decreed to Mrs. Krone, is one in which the appellant cannot claim to be interested. That portion of the proceeds of sale adjudged to Mrs. Krone, appears to be a fair and equitable proportion, considering her period of life; and as to such portion, the appellant stands in the same relation to it, that he stands to any other personal estate of his wife held under the provisions of the Code, Art. 45, secs. 1, 2; and his assent or dissent to the sale could, in no manner, have affected the right and power of the Court to pass the decree.

2. Then, as to the second objection to the decree, that it was passed upon the separate answer of Mrs. Krone, that we think can avail the appellant nothing. It appears from the pleadings and proof that at the time of the institution of these proceedings, as also at the time of passing the decree, Mrs. Krone was divorced a mensa et thoro, from the appellant by a then subsisting decree of the Circuit Court of Baltimore City; and although it was very proper that the appellant should have been made a party to this cause, as he was, we think it, by no means, essential to the validity of the decree that he and his wife should have answered jointly. By the Code, Art. 16, see. 26, the Court divorcing the parties, had full power to award to the wife all such property or estate as she had when married, and we find that by the decree of divoi’ce, all the property and estate of every kind and description, which the wife held at the time of marriage with the appellant, which was in 1866, was awarded to the wife, “ to be held, possessed,

and enjoyed, disposed of, sold and conveyed by her as a féme sole, to the same purpose,' extent and effect as she might or would have done' had said marriage never taken place.” By this decree of divorce, the parties were not only personally separated, but were made separate in interest and estate. "Why then should the wife, in such case, be required to answer jointly with the divorced husband ? We can see no reason for it, but, on the contrary, many and strong reasons against it; and we fully concur with the reasoning of Chief Justice Parker, in Dean vs. Richmond, 5 Pick., 461, and of Chief Justice Shaw, in Pierce vs. Burnham, 4 Met., 305, in support of the con■clusion, that the relation in which the divorce a mensa •et thoro places the parties, opposes such dependence and .joinder in proceedings concerning the wife’s property. See 2 Bish. on Mar. and Div., secs. 736, 737.

It is true the decree of divorce has, since the passage of the decree appealed from in this case, been reversed by this Court. But every decree stands for what it pui’ports to be until it has been x’evised or reversed, in due coux’se and proper foxm (1 Md. Ch. Dec.,* 455,) and consequently the subsequent reversal of such decree, did not, in any manner, affect what had been done in this case.

But if the decree of divox-ce had no such effect of allowing the wife to answer separately in regard to her separate estate, she certainly would have been allowed, by the long-existing rules in Courts of Equity, in a case like the present, to have answered separately from her husband; for, while the general rule requires that husbands shall be joined with their wives as defendants, and their answers to be joint, there are well-established exceptions to the rule, in both of its x-equix’e'ments. “ A married woman,” Rays Judge Story (Eq. Pl., sec. 71), “maybe made a defendant and answer as & féme sole, evexx, it is said in Some ■ cases, without any order of Court;” as in the examples ■cited by him. “ But genei’ally,” says he, “ a. married wo

man cannot answer separately when her husband is joined, or ought to be joined, as a defendant in the suit, without an order of Court for that purpose, founded upon special circumstances. Thus, where a married woman claims as a defendant, in opposition to her husband, or lives separate from him, or disapproves of the defence, which he wishes her to make, she may obtain an order of the Court for liberty to answer and defend the suit separately; and in such case her answer may he read against her.” So here, if application had been made, the Court would, unquestionably, .have given liberty to Mrs. Krone to put in her separate answer, and when we can see, as we do in this instance, that what has been done would have certainly been allowed if application had been made for the purpose, and that no possible injury has been done, the Court ought not to hesitate- to ratify and sanction it as if done under an order previously obtained. By so doing, substantial justice will be subserved, and a mere technical objection, in no way touching the merits or the equity of the case, be defeated.

(Decided 25th June, 1869.)

3. And as to the third objection to the decree, that the consent given to its passage by Mrs. Krone was a nullity; that forms ho better cause for reversal than the other grounds considered. Whether Mrs. Krone consented to the decree or not, was wholly immaterial. The correctness of the decree depends not upon Mrs. Krone’s consent, but upon the allegations and proof in the cause. The allegations and proof are ample in respect to all the essential facts to give jurisdiction, and to authorize the passage of the decree; and after full consideration we have found nothing to constitute a sufficient cause to reverse it.