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Silver Bay Homes v. Herrmann

Decided: April 22, 1974.

SILVER BAY HOMES, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
EDWARD HERRMANN AND ROSE MARIE HERRMANN, HIS WIFE, DEFENDANTS-RESPONDENTS



Kolovsky, Fritz and Crane. The opinion of the court was delivered by Kolovsky, P.J.A.D.

Kolovsky

In 1971, when defendant Edward Herrmann was adjudicated a bankrupt, he and his wife, defendant Rose Marie Herrmann, owned as tenants by the entirety a one-family house in East Paterson, New Jersey, in which they and their children resided. It is conceded that Edward's interest in the property passed to his trustee in bankruptcy who, pursuant to an order entered on May 4, 1972 by a referee in bankruptcy, sold and transferred that interest for $1,000 to Glen Rock Lumber & Supply Co. (Glen Rock), a prior creditor of Edward.

The complaint filed herein by plaintiff, to which Glen Rock had allegedly conveyed the bankrupt's interest in the property, concluded with the allegations that defendant Rose was in possession

* * * by virtue of her one-half interest as tenant by the entirety, her husband's interest being the subject of the aforesaid sale to Glen Rock Lumber and Supply Co., Inc.; [and that] [p]laintiff is seized of an undivided one-half equal interest in the subject premises with the defendant and requests that the premises be partitioned, * * *

and demanded judgment

That the life estate for the joint lives of Edward Herrmann, Jr., and Rose Marie Herrmann, his wife, be sold and that the proceeds thereof be paid to the parties according to their proportionate share.

Following the filing of an answer and counterclaim and an answer to the counterclaim, plaintiff moved

The affidavit filed in support of the motion, executed by a member of the firm of attorneys which represents plaintiff, embodies, without specification, an allegation that plaintiff is the "holder of an undivided one-half interest as tenant by the entirety in the premises" and the statements:

3. The premises are incapable of ordinary subdivision and consequently, must be sold to satisfy the interest of the plaintiff herein which succeeded to the interest of the defendant Edward Herrmann, husband of the holder of the remaining undivided one-half interest in the premises.

4. No claim in the nature of a dispute over the title is present, consequently, the sale must take place, any question relating to the proportionate share of the proceeds to await further disposition of this Court.

The answering affidavit filed by defendant Rose Herrmann set forth facts allegedly constituting inequitable conduct by Glen Rock, plaintiffs' affiliated corporation.

After argument on the motion the trial judge, who had reserved decision, filed a letter opinion in which he treated the matter as being before him on ...


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