
    JOHN BRELL vs. MARGARET BRELL.
    
      Husband and Wife — Wife’s Money Used by Husband — Repayment — Property Held by Entireties — Appointment of Trustee.
    
    In a suit between a man and woman as to the proceeds of the sale of property jointly owned by them, held that, in view of the woman’s testimony that they were married, of their having lived together as man and wife, and of the man’s having had the deed to the property made to himself and the woman as his wife, they should be regarded as husband and wife for the purpose of the case, in spite of the man’s denial of the existence of that relation. p. 448
    The admissions and declaration^ of the husband and wife are admissible to prove their marriage. p. 448
    The proceeds of the sale of a farm, and oí a mortgage for a part of the price, belonging to a man and his wife, having been applied, with the wife’s acquiescence, on a debt due by the husband, and in payment of their joint living expenses, there was no obligation on the husband to repay any portion thereof to the wife, in the absence of an express promise by him to do so. pp. 448-450
    That a man uses his wife’s money, with her acquiescence, does not give her a claim against him, unless, at the time of receiving or using the money, he expressly promises to repay it.. p. 449
    That a husband, on purchasing property, has the deed made to himself and wife as tenants by the entireties, involves a gift by him to her of the interest thereby conveyed to her. p. 450
    Where a farm and a mortgage belonged to a man and wife as tenants by the entireties, they had a like title to the proceeds of the sale of the farm and mortgage, with a right in the sur» vivor to take the whole. ■ p. 450-
    
      In a suit involving the ownership of a fund belonging to the plaintiff and defendant, husband and wife, as tenants by the entireties, held that a trustee should be appointed to receive such fund, and invest it under an order of court, one-half of the net income therefrom to be paid to each party until the death of one of them, and the corpus to be paid to the survivor, unless sooner distributed by agreement of the parties. p. 451
    
      Decided June 25th, 1923.
    
    Appeal from the Circuit Court of Baltimore City (Gárboli, T. Boro, J\).
    Bill by Margaret Brell against John Brell. From a decree for plaintiff, defendant appeals.
    Reversed.
    The cause was argued before Boyd, C. J., Briscoe, Thomas, Pattison, Urner, Stockbridge, and Offutt, JJ.
    
      Philip B. Perlman and Jerry L. Smith, with whom was Ogle Marbury on the brief, for the appellant.
    
      Charles Jackson, with whom was Arthur R. Padgett on the brief, for the appellee.
   Thomas, J.,

delivered the opinion of the Court.

The bill of complaint in this case, which wasi filed in the Circuit Court of Baltimore City, on August 8th, 1922, alleges that the plaintiff, Margaret Brell, and the defendant, John Brell, her husband, were the owners as tenants by the entireties of a small farm in Anne Arundel County, Maryland, which they sold on the 21st of October, 1918, for the sum of $5,800, $1,800 of which was paid to the defendant, and a mortgage executed to him and the plaintiff for the balance; that in 1922 the plaintiff was' induced by her said husband to execute a release or assignment of said mortgage upon his promise that the proceeds would be invested or deposited in bank in their joint names, but that she has “now discovered” that the defendant purchased and paid for out of the proceeds of said farm a property known as Kb. 1035 Hollins Street, in Baltimore, City, and Las, taken the title to the same in Ms own name; that ever since the defendant received the proceeds of said mortgage: Le Las treated the plaintiff, who Las been an invalid for the past five years, unable to take care of herself or to move from place to place without assistance, with great cruelty and indifference and thereby compelled her' to leave him and take up> her residence with her children, and that he intends to, defraud and deprive her of her share of the; said sum of $5,800, one-half of which he should he required to pay to, her; that the: defendant conducts at Ho. 1035 Hollins Street a hardware business,, in which he used a part of the proceeds of said farm to purchase his stock of goods, and that he also: deposited in the Calvert Bank, in Baltimore City, in his own name in the savings department of said hank the sum of $2,000, and the further sum of $200' in a checking account, both, of which sums are part of the proceeds of said farm, that at the time of the purchase of the Hollins Street property the defendant stated to the plaintiff that the title to the same would be taken in their names, and that at the time he commenced said business it was understood and agreed between them that it was to be their “joint business”; that it was also; understood and agreed that the money deposited in the Calvert Bank was to be deposited in their joint names, and that the plaintiff believes and avers that the defendant is about to sbll the Hollins Street property and said business, and to withdraw the deposits in said bank for the purpose of defrauding her.

The prayers of the bill were (1) that John Brell be enjoined from drawing any part of the money in said bank, from disposing of said property and from selling or disposing of the stock of goods in said property “in bulk.” (2) That the Calvert Bank be enjoined from paying to the defendant any part of the money deposited in said bank. (3) For a decree requiring the defendant to pay to the plaintiff a sum equal to one-half of the proceeds of said farm, and for the appointment of a receiver to take charge of said property, business and money to the end that the same might be divided between the plaintiff and the defendant.

The evidence shows that the plaintiff, who was a widow with three young children, and whose name was Margaret Fisher, had known the defendant in Germany for about a year before they came to this country to live. The defendant oame to America in 1889, bringing with him the plaintiff and her children, and he .and the plaintiff have lived here as man and wife ever since. He secured work as a stevedore and purchased a home at Locust Point. After living at Locust Point about five or six years he sold his house and they moved to Anne Arundel County, where he rented the little farm, containing about twenty-one acres of land, which he after-wards purchased in 1895 .and caused the deed to. he made to “John Brell and Margaret Brell, his wife.” The evidence also shows that the plaintiff had no means, and that the defendant paid for the farm, and he states in his answer that the reason he had the deed made to himself and the plaintiff was that he wanted to preserve the property as a home. The evidence further shows that the plaintiff’s health became very bad (she stating in her testimony that she told the defendant that she was no longer well enough to. get along on the farm and that the best thing to do would he to. sell it), and that they determined to sell the farm, and sold it in 1918 for $5,800. $1,800 of the purchase price was paid to the defendant, and the purchaser executed a mortgage to him and the plaintiff for the balance of $4,000. After the sale of the farm the defendant .and the plaintiff went to Baltimore to live. The defendant purchased in his own name the property Ho. 1035 Hollins Street, where he conducted a hardware business on the first floor, and he and the plaintiff made their home in the upper stories of the building. The plaintiff’s health became so bad that she could not take a bath, fix her hair or go. to bed without assistance, .and had to be carried up and down stairs by the defendant, and defendant had to employ a woman to prepare their meals and to tali© care of the plaintiff and their home. The plaintiff became dissatisfied because, she says, she was not receiving all the attention she should have, and decided to go to her son’s home, to live, and the defendant entered into an agreement to pay her son and his wife $10 per week for the plaintiff’s board and the: ear© and attention she required, and also to pay for any medical attention she might require. $200 of the first payment on the farm was paid to the broker who secured the purchaser, and in April, 1922, the defendant and the plaintiff were compelled to sell the mortgage of $4,000 for $3,350 in order to raise $950 which he had borrowed from one of the plaintiff’s sons, who was pressing him for payment. At the time the bill was filed there was deposited in the Calvert Bank, in the name of the defendant, $2,017.20 in the “savings department” and $337.96 in a checking account. The evidence further shows that the plaintiff united in the sale of the farm and mortgage voluntarily for the purposes we have stated; that she knew that the money was paid to the defendant, and that he paid out of the amount he received from the mortgage his indebtedness to her son to the amount of $950, and there is not the slightest evidence: in the ease to support the averments of the bill that the farm was sold and the mortgage assigned with the understanding between the plaintiff and the defendant that the proceeds were to he invested or deposited by him in their joint names. On the contrary the plaintiff testified that she had no conversation with the defendant on the subject,, and the farthest she was willing to go in her testimony was that she “expected” to get “something out of it” or “half” of it from her husband because she “worked in the house for my husband and my children,” while the defendant testified positively that there: never wias any such understanding, and further testified that the money he received from the sale of the farm and mortgage was not used in the: purchase of his stock in -the hardware business; and a very little, if any, of it in the purchase: of the Hollins Street property; that he had not done any business for the last five years, and that the difference between the amount in bank and the amount actually realized from the sale of the farm and mortgage had been used in paying living expenses, doctors’ bills and a housekeeper to. take care of the plaintiff and their home. Nor is there any evidence of the cruel treatment of the plaintiff by the defendant alleged in tire bill.

In his answer the defendant alleges that he was never married to the plaintiff, that he had guarded that matter closely ever since they left Germany, but that as she had seen fit to divulge it he felt at liberty to make the statement in his answer. He also testified that he and the plaintiff had never been married, but in'view of her testimony that they were married before they left Germany, their living; together as man and wife, and his having the deed for the farm, and also the mortgage for $4,000, made to himself and the plaintiff, as his wife, we think, at least so far as the farm and the proceeds of the sale thereof are concerned, and for .the purposes of this case, that they should be regarded as husband and wife. The admissions and declarations of the husband and wife have always been accepted in this State to prove their marriage. Craufurd v. Blackburn, 17 Md. 49; Jackson v. Jackson, 80 Md. 176; W., B. & A. R. Co. v. State, 136 Md. 103; 18 R. C. L., sec. 51, p. 424.

The appeal in this case is by the defendant from, the decree of the court below requiring him to immediately pay to tíre plaintiff the sum of $2,450 and continuing the injunction theretofore granted until said sum was paid. No opinion appears to have been filed by the court below and we are not therefore advised upon what theory the decree was passed. As we have said, the proceeds of sale of the farm and mortgage were paid to the defendant with the knowledge and acquiescence of the plaintiff, who likewise acquiesced in the application of $950' of .said money to the payment of the debt due one of her sons, and there is no evidence to show that the stock in the hardware business or the Hollins Street property was purchased with the proceeds of sale of said farm and mortgage. The defendant states that they were not so purchased, and the plaintiff says that the H'ollins Street propery was purchased before the sale of the mortgage, while the uncontradicted evidence in the case isi to the effect that the difference between the aggregate amount in bank, and the amount actually realized from the sale of the farm and mortgage, was used to meet the living expenses of the defendant and his wife. Under such circumstances, in the absence of an express promise of the defendant to repay the amount paid to the plaintiff’s son and for the living expenses mentioned, there is no implied obligation on his part to do so. This is the settled rule in this State¡, and one that has been frequently applied. In the case of Grover, etc., Co. v. Radcliff, 63 Md. 496, Chief Juduge Alvey said: “But if such money or other separate property of the wife has been received by the husband, with the knowledge and. acquiescence of the wife, without such express promise at the time, no implied assumpsit, .either legal or equitable, will arise to support a claim against the h usband or his estate. The wife having the jus disponendi of her separate property, if she thinks proper to let her husr band have it, or appropriate it, without any express promise or agreement at the time to account for or repay her the amount so received or appropriated, she cannot afterwards set up a claim against thei husband upon the footing of a creditor. In soda case she is taken to have acquiesced in the appropriation of the fund for the common benefit of herself and husband, or for the benefit of the family.” In Farm. & Mer. Nat. Bank v. Jenkins, 65 Md. 245, the Court used this language: “And whatever may have been the general understanding, that the money thus received by him belonged to' his wife, and for which he ought to be accountable, the proof fails to show that it was received by him under an agreement to repay to her, or to invest it for her use,” and in Jenkins v. Middleton, 68 Md. 540, the Court said: “It is settled upon the soundest reasons that if a man uses the money of his wife with her acquiescence, she does not acquire a claim against him, or his estate, unless at the time of receiving or using the money, he made her an express promise to repay. She cannot become a creditor under these circumstances, by reason of the fact alone that ■ her husband has received the benefit of her money. There must he an express and specific promise-to repay her. It is useless to agitate this question, because it is the settled law of the court.” The rule wás; also stated and applied in Tyson v. Tyson, 54 Md. 35, in the later cases of Reed v. Reed, 109 Md. 690, and Nihiser v. Nihiser, 127 Md. 451.

To the $2,017.20 and the $337.96 deposited in the Galvert Bank, which the appellant -says are parts, and all that remains, of the proceeds of sale of the farm and mortgage mentioned, we think a different principle applies. The defendant caused the deed for the farm to be made to himself and bis wife as tenants by the entireties, and the deed must therefore he regarded as a gift to the plaintiff of the interest in' said farm thereby conveyed 'to her. Meyers v. Loan & Sav. Assn., 139 Md. 607. The mortgage to secure the $4,000' was also made to both of them. The amounts in the Galvert Bank are a part of the proceeds of sale of the farm and mortgage, and the interest of the plaintiff and defendant in said farm and mortgage, in the absence of an agreement to the contrary, must follow the funds derived from their sale. As the farm and mortgage belonged to them as tenants by the entireties, they have the same title to the two sums in bank, with the right of the survivor to take the whole. In the case of Masterman v. Masterman, 129 Md. 167, where the Oourt was dealing with the disposition of the proceeds of a fire insurance policy which covered property held by the husband and wife as tenants by the entireties, after suggesting that a decree might he obtained under the provisions of the Code for a sale of the property and investment of the proceeds, Chief Judge Boyd said: “If sold, the proceeds of sale, together with the insurance money, should be invested under the order of the court, and one-half of the net income paid to each party until the death of one, when the corpus should be paid to the survivor, unless it he sooner distributed, either by agreement of the parties, or by order of the court, in case there be such a change of conditions as will under the law applicable justify such distribution.” Following the suggestion made in that case, a trustee should be appointed by the court below in tbis case to receive the two sums deposited in the Calvert Bank, and invest the same under the order of said court.; one-half of the net income received therefrom to be paid to each party until the death of one of them, and the corpus to be paid to the survivor, unless, sooner distributed by agreement of the parties.

It follows from what has been said that the decree of the court below must be reversed and cause remanded in order that a decree may be passed in accordance with the foregoing opinion.

Decree reversed and cause remanded in order that a decree may be passed in accordance with the opinion of this Cohort, the costs in this Court to be paid by the appellant and the costs in the court below to be paid as provided in said decree.  