Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
Defendant appeals from a judgment of the Superior Court, Chancery Division, granting plaintiff's demand that certain properties owned by the parties as tenants in common be sold in partition.
Plaintiff and defendant are husband and wife and are equal owners, as tenants in common, of the three properties with which we are concerned. The title to the properties was originally in the name of the defendant, and on July 1, 1949 they were conveyed by the defendant through an intermediary to the plaintiff and defendant as tenants in common. The validity of the conveyance to the plaintiff and defendant was established in Michalski v. Michalski , 20 N.J. Super. 258 (Ch. Div. 1952) where the marital discord between the parties is defined.
Contemporaneously with the conveyance the parties executed the written agreement which forms the basis for the instant suit. It provided:
"AGREEMENT made this 1st day of July, 1949, between MARION MICHALSKI and ALEXANDRA OTTO MICHALSKI, husband and wife.
WHEREAS, certain domestic difficulties have arisen between the parties; and whereas, by deed bearing even date herewith and about to be recorded, said Alexandra Otto Michalski has conveyed to said Marion Michalski a one-half interest in and to certain properties known as 26 Pulaski Street, Bloomfield, 190-192 North Park Street, East Orange, 571 Liberty Street, Orange, and 123 Valley Road, West Orange, New Jersey, to the end that the same may be held by them as tenants in common; and whereas, said parties desire to make certain agreements in respect to the premises as hereinafter stated:
In consideration of the premises, it is hereby agreed as follows:
1. Each party shall treat the other with kindness and respect.
2. Neither party shall transfer or mortgage his or her interest in and to said properties without the written consent of the other party, nor shall do or permit anything in respect thereto to defeat the common tenancy of said properties by said parties.
3. Said Alexandra Otto Michalski shall, either personally or by said Marion Michalski as her agent, collect and take all the rents of said properties and pay all the taxes, insurance premiums, repairs and other charges thereon and maintain the same so long as she shall live, except that in the event said Marion Michalski becomes unable to pursue his usual business and engage in gainful occupation, one-half of the net rents shall be paid to him.
4. In respect to the property known as No. 123 Valley Road, West Orange, New Jersey, it is understood and agreed that the parties propose to make this their home for occupancy by themselves, and by Jane Otto and Marianne Otto, daughters of said Alexandra Otto Michalski, and by Wladyslawa Michalski, mother of said Marion Michalski, and that all and each of them shall have the right to occupy said property as their home so long as they desire. Said Marion Michalski agrees to make a Will devising his interest in said property to said Alexandra Otto Michalski, her heirs and assigns, subject to the right of his mother to occupy the same as aforesaid; and said Alexandra Otto Michalski agrees to make a Will devising her interest in said property to her children, subject to the right of said Marion Michalski and his mother to occupy the same as aforesaid; and upon the death of either party, the occupants of said property shall pay the taxes, insurance premiums, repairs and other charges on said property in equal shares during their respective occupancy thereof.
IN WITNESS WHEREOF we hereunto set our hands and seals the day and year first above written.
/s/ Marion Michalski (L.S.)
/s/ Alexandra Otto Michalski (L.S.)"
Of the original four properties mentioned in the agreement, the present appeal concerns only three, the fourth, at 123 Valley Road, West Orange, not being included in plaintiff's demand for partition.
As part of the record the parties stipulated the following facts which briefly describe the circumstances and living conditions of both plaintiff and defendant. At the time of the July 1, 1949 conveyance the plaintiff and defendant lived together as husband and wife in the common domicile on Liberty Street, Orange, one of the properties involved herein. Although their agreement contemplated that they were to live together in the property on Valley Road, the parties subsequently separated on February 6, 1952 and since then have continued to live separately. Plaintiff for the past three years has lived at 190 North Park Street, East Orange. Defendant, her daughters by a prior marriage, and the mother of the plaintiff lived at the Valley Road address, and, with the exception of the plaintiff's mother who died in September 1956, all have continued to live there. Plaintiff is now 69 years of age and his wife, the defendant, is 83 years of age.
The record further discloses that when the properties were conveyed to the plaintiff and defendant, as cotenants, and the agreement of July 1, 1949 executed, the marital relationship was harmonious. About a year after their agreement that "each party shall treat the other with kindness and respect," the defendant caused the plaintiff to be arrested on a complaint of assault and battery. He was indicted and acquitted by a jury. In February 1951 a similar complaint was made by the plaintiff against his wife, but it was withdrawn on the understanding that Mr. Michalski would leave the home, that he would collect the rents and divide the net profits. Several days later, on February 27, 1951, the defendant instituted suit to set aside the conveyances by which plaintiff obtained his interest, on ...