Carton, Mintz and Seidman. The opinion of the court was delivered by Mintz, J.A.D.
[124 NJSuper Page 440] In this partition proceeding we granted leave to defendant to appeal from an order confirming the sale of three parcels of real property. The parties to this action were formerly husband and wife. As a consequence of their divorce they became cotenants in common of five separate properties situate in this State. One parcel at 32 Rochester Drive in Bricktown is a residence presently occupied by defendant. Three noncontiguous parcels are situate
in Union Beach and consist of (a) a business property on Union Avenue in which defendant conducts his business; (b) a residence at 204 Morningside Avenue in which plaintiff resided, but apparently moved therefrom in 1972, and (c) a one-family residence at 620 Morningside Avenue, apparently a rental property formerly occupied by defendant's parents. The fifth parcel is a vacant lot on Holmdel Road in Holmdel.
On June 3, 1971 summary judgment in partition was entered on motion of plaintiff, and Thomas J. Baldino, Jr. was appointed commissioner to effect sales of the properties. On July 28, 1972 the commissioner entered into contracts to sell the premises at 620 Morningside Avenue in Union Beach, and 32 Rochester Drive, Bricktown. The respective contracts were negotiated through a real estate agency and subject to the payment of a commission of 7%.
On August 4, 1972 defendant moved for a physical partition of the respective parcels between the parties in lieu of a sale of all five properties through the commissioner. He filed a supporting affidavit in which he requested that he be permitted to retain his home and the business property; that plaintiff be allotted the other two residential properties, and that the vacant lot be sold and the proceeds utilized to make financial adjustments between the parties. The court denied the application stating:
Partition applies to a particular piece of property and in this case partition applies to five pieces of property. There is no question that no one of these pieces of property can be divided so that the husband will have part and wife will have part. Therefore the only thing that can be done is to sell.
The court further indicated that defendant was desirous of retaining the properties in which he resides and the business property, that plaintiff should receive the other two residences, and that the Holmdel property be sold and the proceeds used to equalize the values. The court also alluded to the commissioner's view that a physical partition was not equitably feasible. The matter was adjourned until August
18, 1972. At that time the court considered a motion to confirm the sale of the vacant lot subject to a 10% real estate commission, as well as the other two properties under contracts for sale. The motion was granted notwithstanding the fact that defendant expressed a willingness to meet the price offered for his residence and the business property.
At oral argument we were advised that only one contract still subsisted, namely, that pertaining to the sale of 32 Rochester Drive for $27,500.
We are mindful of the trial judge's observations respecting defendant's obstructive tactics pertaining to the support payments required to be made, and his alleged failure to repair defendant's residence. However, these factors are irrelevant to the problem here presented. Simply stated, the basic issue is whether the court erred in refusing to make a physical allotment of the five noncontiguous properties. Although the application for such a disposition was belatedly made, we conclude that the trial court erred in holding that since no single parcel was capable of physical partition, a sale of all five properties was required. We do not believe that such a determination was mandated by N.J.S.A. 2A:56-2.
The precise issue was presented in Ierrobino v. Megaro , 108 N.J. Super. 556, 561 (Ch. Div. 1970), where the court stated:
There is considerable authority in other jurisdictions holding that where the properties sought to be partitioned consist of separate and distinct parcels, the whole may be treated as one estate for the purpose of making division and allotment where no injustice results. Thus, one tract may be allotted to one party and another to another where the values are properly proportionate to their respective interests, or the share to which a party is entitled may ...