Kilkenny, Goldmann and Leonard. The opinion of the court was delivered by Kilkenny, J.A.D.
Defendant appeals from a final judgment of the Chancery Division, ordering a partition sale of real estate known as Nos. 154-156 Palisade Avenue, Garfield, New Jersey, and directing that the proceeds of sale be deposited with the Clerk of the Court pending a further determination of the respective rights of the parties therein.
The basic issue on the appeal is whether partition of real estate may be ordered in a suit by the sole owner of the fee against a single life tenant with a possessory interest in a part only of the subject premises, who has not applied for or agreed to the partition. Defendant life tenant contends that N.J.S. 2A:56-37 precludes a partition of the premises in question without her applying for or agreeing to the partition.
The premises at No. 154-156 Palisade Avenue, Garfield, consist of a plot of ground approximately 60 feet wide by 95 feet deep upon which there are two dwelling houses on either end of the plot, with a driveway in the center leading to a multi-car garage located in the rear center of the property, extending behind both dwellings. The premises were owned by Andrej Lukus until his death in 1959.
Paragraph 7 of the last will and testament of Andrej Lukus provides:
"I further give and devise to my said daughter, Veronica Lukus, the right to use and occupy the first floor of premises in which I now reside, known as 156 Palisade Ave., Garfield, New Jersey, for and during the term of her natural life."
"I give and devise all of that parcel of land, with two buildings and garages thereon, having a frontage along the easterly side of Palisade Ave., of 60 feet, known as 154-156 Palisade Ave., Garfield, New Jersey, to my daughter, Helen Golick, to her, her heirs and assigns forever, subject to the rights of my daughter, Veronica Lukus, in the first floor of 156 Palisade Ave., Garfield, New Jersey."
Thus, the daughter Helen became sole owner of the fee, subject only to the life estate of the other daughter Veronica in the first floor of 156 Palisade Avenue, a part only of one of the two dwellings. No. 156 is a two-family dwelling and its first floor is at ground level, with separate entrance thereto from the driveway. There are only three rooms in this first floor apartment.
Following the death of their father, unhappy differences arose between the two sisters, each claiming continued harassment and annoyance by the other. The trial court summed up the mutual unpleasantness by stating that they were "virtually at each other's throat." Plaintiff Helen Golick filed a complaint seeking injunctive relief against her sister, Veronica, or that the issues be submitted for arbitration and award under the statute. Defendant counterclaimed for injunctive relief against alleged molestation and interference with her peaceable enjoyment of the part of the premises occupied by her. During the pendency of the action, Helen Golick died and her husband, Michael Golick, was substituted as plaintiff. Subsequently, he filed an amended complaint in which he sought a partition and sale of the premises.
After the pretrial, the matter was submitted to the Chancery Division without any testimony, ...