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Ross v. Ross

Decided: April 27, 1955.


Goldmann, J.s.c.


The parties were married on January 29, 1929. In 1939 they bought a dwelling at 32 Bettlewood Avenue, Oaklyn, N.J., for $3,500, title being taken in both names. They paid $500 in cash and assumed an F.H.A. insured mortgage held by the Oaklyn National Bank. The parties separated on May 8 or 10, 1942 when plaintiff went to live in Philadelphia where he worked for a local newspaper. He moved to Miami, Florida in 1952, obtained employment with a newspaper there, and has remained in Florida ever since. He subsequently instituted divorce proceedings in Florida against defendant; she appeared by her attorney but did not further oppose the action. On April 10, 1953 a decree was entered in plaintiff's favor.

On March 3, 1954 plaintiff filed a complaint in the Chancery Division for partition of the Oaklyn property. The

original answer set up by way of separate defense that plaintiff had, after the divorce, conveyed his interest in the property to defendant by deed dated July 2, 1953, duly recorded. Later, by amended answer and counterclaim defendant stated that plaintiff had agreed to turn over his one-half interest in the property to her and actually did so, and she demanded judgment of $1,407, representing arrears down to November 28, 1954 under a $12-a-week support order entered October 8, 1942 in the Domestic Relations Division of the Municipal Court, County of Philadelphia.

The pretrial order sets out the several contentions of the parties. Plaintiff demanded partition and an adjudication that the deed under which defendant claimed his interest in the property in question was a forgery. Defendant, in turn, denied plaintiff ever had any interest in the realty, his name having been included in the deed because she was informed this had to be done; that following the divorce plaintiff agreed to and did convey his interest in the property to defendant; and that in the event of partition, defendant demanded reimbursement for monies expended for maintaining and improving the property and also for arrearages due under the support order. Plaintiff denied these claims, including the alleged arrearages, and contended that the claim for arrearages could not be maintained in New Jersey because they had not been reduced to judgment in Pennsylvania.

The partition action was heard first. Defendant was represented by substituted counsel, her original counsel having been relieved as attorney by court order entered October 1, 1954. From the testimony adduced I am convinced that title was properly and with full understanding taken in both names; that plaintiff made the $500 downpayment and kept up installment payments under the mortgage until he left the marital home in May 1942, at which time $2,521.38 was due on the existing mortgage; that although there had been negotiations between the parties' Florida attorneys looking toward a conveyance of plaintiff's interest to defendant, and certain other payments by him to her, an agreement was never reached because of defendant's attitude; that the deed upon

which defendant relies was clearly a forgery; and that defendant's explanation as to how the deed came to be executed in Philadelphia finds no support whatsoever in the facts because plaintiff was in Miami, Florida, at the time, had never seen the deed, and had never signed it. Incidentally, defendant did not produce the notary public who allegedly took plaintiff's acknowledgment to the deed. Her story as to how she had the deed prepared and, after sending it to plaintiff's sister in Philadelphia, received it back through the mail, is totally unsupported. There will be judgment for plaintiff on the complaint.

Defendant dismissed her attorney after the taking of testimony under the complaint for partition had been completed. The court formally relieved him from any further duties. Inasmuch as defendant was unable to obtain another attorney, the court assigned counsel to represent her on the counterclaim.

Judgment for arrears having been entered in the Pennsylvania court for the sum of $1,428 as of January 11, 1955, the counterclaim was amended in open court to show that fact.

After defendant's new counsel had been given sufficient time to analyze her records of expenditures made for improvements and to arrange for the appearance of necessary witnesses, the court proceeded to take testimony under the counterclaim. Before considering this testimony, it is necessary to dispose of two questions: (1) whether a husband, a tenant by the entirety who is separated from his wife, is obligated to contribute one-half the cost of reasonable and necessary improvements to the property made by her prior to the date the parties were divorced; and (2) whether defendant was technically limited in her offers of evidence at the trial to those matters contained in her answers to interrogatories.

A tenancy by the entirety is a tenancy in common between husband and wife, for their joint lives, with the remainder to the survivor in fee. Each of them is seized per tout et non per my. It is well settled in this State that

where title to real property is held by husband and wife as tenants by the entirety, "the wife holds in her possession during their joint lives one-half of the estate in common with her husband, and, as between themselves, the respective rights of the parties are those of tenants in common, * * *." Nobile v. Bartletta , 109 N.J. Eq. 119, 122 (E. & A. 1931). This rule was recognized in O'Connell v. O'Connell , 93 N.J. Eq. 603 (E. & A. 1922), an action brought by the wife against the husband for an accounting of rents, issues and profits of the premises standing in both their names. The court held that ordinarily one of the rights of a tenant in common as against his co-tenant is to have an accounting of rents collected:

"The principle upon which the rule rests is that a tenant in common, in leasing the common property and in collecting the rents from the lessee, acts not only in his own right but as the ...

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