Opinion
[No. 296, September Term, 1971.]
Decided March 10, 1972. Motion for rehearing filed March 28, 1972; denied April 3, 1972. Certiorari denied, Supreme Court of the United States, October 10, 1972; petition for rehearing denied December 4, 1972.
ACTION — DAMAGES — Tenants By The Entirety — Both Spouses Must Join In An Action For Damages To Property Which They Own By The Entirety Not Only Because Of The Way Title Is Held But Because Maryland May Require On Motion By Defendant That Even Tenants In Common Be Joined As Plaintiffs In An Action Ex Delicto For Damage To Real Property And Also To Personal Property. pp. 2-3
Motion for rehearing filed March 28, 1972; denied April 3, 1972.
Appeal from the Circuit Court for Baltimore County (JENIFER, J.).
Action in trespass by Mrs. Ida M. Picking against Melvin A. Yates, Joe Judge and State Finance Corporation and against Yates for having damaged leased premises. From an order dismissing the case because of the plaintiff's refusal to amend her pleadings by joining her husband, on motion made by Yates and Judge, Mrs. Picking appeals.
Order affirmed, costs to be paid by appellant.
The cause was argued before HAMMOND, C.J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.
Ida M. Picking, in proper person.
No brief filed on behalf of appellees.
Mrs. Picking, who with her husband, Guy W. Picking, own, as tenants by the entirety, certain real property in Baltimore County, brought an action in trespass in the county's circuit court against Melvin A. Yates, their tenant; Joe Judge, an automobile dealer, and State Finance Corporation. The gravamen of the action was that Judge sold one Taylor an automobile financed by State Finance; that Taylor defaulted; that Judge repossessed the car, had it placed on the Pickings' property by arrangement with Yates, the tenant, and refused to remove the car. Additionally, Yates was charged with having damaged the leased premises. A full statement of the facts may be found in Picking v. State Finance Co., 257 Md. 554, 263 A.2d 572 (1970), where we dismissed an earlier appeal which had been taken from an interlocutory judgment. See also Picking v. State Finance Corp., 332 F. Supp. 1399 (D.Md. 1971), aff'd, 450 F.2d 881 (4th Cir. 1971).
This appeal was taken from an order entered on 30 September 1971, dismissing the case because of Mrs. Picking's refusal to amend her pleadings, by joining her husband, the other tenant by the entirety, as party plaintiff, since he was a real party in interest, on motion made by Yates and Judge under Maryland Rule 203.
While Mrs. Picking raises other issues, her refusal to have Mr. Picking join in the action goes to the heart of the matter, and her appeal must fail. No principle is better established in our law than that tenants by the entirety, because, unlike joint tenants, they hold per tout et non per my, must act together to sell their property, Eastern Shore Bldg. Loan Corp. v. Bank of Somerset, 253 Md. 525, 253 A.2d 367 (1969); to subject it to any interest or encumbrance, Lissau v. Smith, 215 Md. 538, 138 A.2d 381 (1958), or to lease it, Tizer v. Tizer, 162 Md. 489, 160 A. 163 (1932). Similarly, both spouses must join in an action for damages to property which they own by the entirety, 2 Poe, Pleading and Practice § 428, at 18 (6th ed. 1970) not only because of the way title is held, but because Maryland may require on motion by a defendant that even tenants in common be joined as plaintiffs in an action ex delicto for damage to real property, Gent v. Lynch, 23 Md. 58, 64 (1865). The same rule applies in actions ex delicto where personal property is involved, Koch v. Mack Motor Truck Corp., 201 Md. 562, 574, 95 A.2d 105 (1953). We are mindful that Parish v. Maryland Virginia Milk Producers Ass'n, 250 Md. 24, 100-01, 242 A.2d 512 (1968) and Toy v. Atlantic Gulf Pacific Co., 176 Md. 197, 4 A.2d 757 (1939) may contain intimations to the contrary, but they must be read in the factual context of those cases.
Order affirmed, costs to be paid by appellant.