This case presents another problem incident to the concept of estate by the entirety.
The matter first came before me as a county district court case in which plaintiff Cornelia Cherry sought the removal of one of the defendants, Sally Hayward, under statutory provisions dealing with forcible entry and detainer (N.J.S.A. 2A:39-2 and 5). Since title was in issue and
since proceedings under N.J.S.A. 39-2 are summary, it was not appropriate to reach the substance of the matter, and I so held. The second phase of the litigation arises on a complaint in the Superior Court which in the first count seeks possession against defendant Hayward, together with damages and counsel fees, and in the second count actual and punitive damages against both Hayward and codefendant Benjamin Cherry, together with mesne profits under N.J.S.A. 2A:35-2. In this count plaintiff also claims damages under N.J.S.A. 2A:65-5, which deals with actions for waste by an heir for destruction of his inheritance. Neither heir nor inheritance is involved (cf. N.J.S.A. 3A:2A-35), so I conclude that damages under this section are entirely inappropriate.
The facts established both by the taking of testimony and stipulation of counsel are not complex. Cornelia and Benjamin Cherry were married in 1977. About ten months later they purchased premises in Newark for the sum of $14,000, which was paid entirely by mortgage, taking title as tenants by the entirety. Mrs. Cherry put in $400 for closing fees. She moved some of her furniture into the house and lived there for a short time before she separated from her husband. Mr. Cherry then made a lease of what he called the second floor of the premises in question to defendant Sally Hayward for $200 a month. It is a fact that Mrs. Cherry did not consent to the lease. Cherry contends that the property is a two-family house and that there are living facilities on the first floor which he made available to Mrs. Cherry, thereby giving her her share of the estate by the entirety. Mrs. Cherry refused the offer. The fact is that the first floor is a basement without sanitary facilities, and I conclude that the contention that the premises are suitable for two separate living establishments is a sham on the part of Cherry to conceal the fact that he has in fact leased that portion of the premises which is useable as living quarters. Sally Hayward now occupies the premises with
her two children. Cherry testified he too occupies a room in the house. The Cherrys are separated.
By motion returnable on the trial day defendant moved to transfer the cause to the Chancery Division. No jury was demanded. R. 4:3-1(a)(2) obligates a party seeking a transfer from one trial division of the Superior Court to another to make a motion "within 10 days after the expiration of the time prescribed by" the rules for the service of the last permissible responsive pleading. The motion is, therefore, long out of time.
Both the law and equity sides of the Superior Court possess original jurisdiction of all causes of action under the 1947 Constitution. Roleri v. Lordi , 146 N.J. Super. 297, 301 (App. Div. 1977). Both can give legal relief and equitable relief. The case will be decided by a judge on either side. There is no reason why the action should be delayed for consideration of transfer to another division of the Superior Court.
The basic issue in this case is whether Cherry, as tenant by the entirety, had the right to lease the premises without the consent of Mrs. Cherry, the cotenant. I conclude that he could not do so.
The difficulty of finding an appropriate solution to the problem in this case is enhanced by "the anomalous nature of an estate by the entirety." Dvorken v. Barrett , 100 N.J. Super. 306, 308 (App. Div. 1968), aff'd 53 N.J. 20 (1968). "The inherent incongruity permeates the problem * * *." Chief Justice Weintraub, dissenting, King v. Greene , 30 N.J. 395, 418 (1959). The difficulty is increased by the relief sought. While married, one spouse may not have partition of an estate by the entirety against the other. Mueller v. Mueller , 95 N.J. Super. 244 (App. Div. 1967). But a creditor levying upon the interest of one of the spouses obtains the ...