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April 2, 1986


The opinion of the court was delivered by: BARRY

 Plaintiff, Glenn A. Reitmeier, and Defendant, Kathryn J. Kalinoski, were engaged to be married when, on August 10, 1984, they purchased a lot of real property with a dwelling place upon it in Ewing Township, New Jersey. On that date they also executed an agreement contingent upon their marriage attempting to set forth their respective interests in that and other property. Plaintiff and defendant subsequently broke off their engagement and this court is now called upon to determine the appropriate disposition of the Ewing Township property.

 It is undisputed that plaintiff paid the entire downpayment, the costs of closing, and other associated costs and that plaintiff and defendant took out a mortgage in both of their names for the remainder of the payment due. It is also undisputed that plaintiff paid for all of the mortgage payments aside from the first which defendant may have paid in part. Similarly, it is undisputed that defendant contributed to certain fixtures on and repairs of the property. Defendant never lived on the property and, since the termination of their relationship, plaintiff has lived there, although whether this was pursuant to an agreement of the parties (according to defendant) or simply happened (according to plaintiff) is unclear. Be that as it may, it is uncontroverted that on the face of the deed plaintiff and defendant are tenants in common, based on the presumption of tenancy in common enunciated in N.J.S. 46:3-17. Mandelbaum v. Weiss, 11 N.J. Super. 27, 77 A.2d 493 (App.Div. 1951).

 On February 15, 1985, plaintiff commenced an action in the Superior Court of New Jersey, Chancery Division, Mercer County, seeking a partition of the Ewing Township property (apparently in the alternative to other requested relief), b. a determination that defendant had no interest in or title to the property, c. a determination that plaintiff alone had interest in and title to the property, subject to the mortgage, d. an order mandating that defendant deliver to plaintiff a deed conveying to plaintiff any interest in the land she might have or, in the alternative, for an order of the court to the same effect, and e. costs.

 Defendant counterclaimed for: 1. fifteen counts of assault and battery, 2. a declaratory judgment that the August 10, 1984 agreement as to the disposition of the property is without force and effect, 3. partition of Ewing Township property with one half of the proceeds to go to her, and 4. damages for instances of personal injuries allegedly caused to her as a passenger in cars driven by plaintiff. Defendant removed this action to federal court pursuant to this court's diversity jurisdiction, as defendant resides in Pennsylvania.

 Plaintiff now moves this court for summary judgment with reference to the courts related to the Ewing Township property and moves to strike the jury demand as to those matters which remain after disposition of the summary judgment motion.

 Before a court may grant a motion for summary judgment, there must be no genuine issue of material fact and the movant must be entitled to judgment as a matter of law. Fed.R.Civ.P. 56: Mourning v. Family Publications Service, Inc., 411 U.S. 356, 362 n.16, 36 L. Ed. 2d 318, 93 S. Ct. 1652 (1973), Jersey Central Power & Light Co. v. Lacey Township, 772 F.2d 1103 (3d Cir. 1985). In ruling on a motion for summary judgment, the court's function is not to resolve factual issues but rather to determine whether any genuine material factual issue exists. Adickes v. Kress, 398 U.S. 144, 159, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142, 155 (1970); Jersey Central Power & Light Co. v. Lacey Township, supra. The court must draw all inferences of fact against the movant and in favor of the party opposing the motion. Adickes v. Kress, supra; Reilly v. Firestone Tire and Rubber Co., 764 F.2d 167(3d Cir. 1985). However, Rule 56(e) does not allow a party resisting a summary judgment motion to rely merely upon bare assertions, conclusory allegations or suspicions. Jersey Central Power & Light Co. v. Lacey Township, supra. Once appropriate evidence has been submitted, controversy as to the facts may not be proved merely by reliance on the pleadings, but only upon affidavits or other sworn and similarly reliable statements: "depositions, answers to interrogatories, or further affidavits." Fed.R.Civ.P. 56(e); Reilly v. Firestone Tire and Rubber Co., supra.



 On August 10, 1984, the same day as the deed over the property at issue was signed, plaintiff and defendant signed an agreement that purported, inter alia, to delineate plaintiff's and defendant's respective percentages of ownership in the property. The agreement stated, in part, that plaintiff's percentage of ownership was to be the greater of 61.36% of the net value or $25,000 plus 50% of net remaining value of the property; defendant's percentage was to be the lesser of 38.64% of the net value or 50% of the net value less $25,000. Net value was defined as the sales price in a bona fide sale, or the fair market value less outstanding mortgages, liens and cost of sale in a disposition of the property in other than a bona fide sale. The agreement stated that all future payments were to be paid out of joint funds. Which future payments were contemplated in the agreement is uncertain, but presumably at least mortgage payments and taxes were intended. The agreement is silent as to the allocation of the respective shares of such joint payments.

 Plaintiff, on the other hand, contends that the agreement was valid, but that it is of no effect because: 1. the law holds that in a case in which a deed is made to co-tenants, their respective portions are indicated by their shares of the purchase price; and 2. plaintiff has paid all the mortgage payments and, as defendant seeks equitable relief, in order to achieve the result she seeks, she must do equity (i.e. offer to pay a share of the mortgage payments.) Plaintiff contends, moreover, that even if the agreement be invalid, it is an indication of the intent of the parties.

 Defendant words her objection to the agreement in the form of a condition precedent (i.e. marriage) to the contract being fulfilled. A conditional promise becomes absolute only upon performance, and therefore the contract entirely conditioned upon the occurrence or nonoccurrence of a particular event is not binding until the condition manifests itself. Duff v. Trenton Beverage Co., 4 N.J. 595, 73 A.2d 578 (1950). However, the agreement on its face does not explicitly condition the contract upon the marriage of the parties. It states merely that the agreement is being made in contemplation of the marriage. When fairness and justice require, the court may find a constructive condition in the contract. Palisades Properties, Inc. v. Brunetti, 44 N.J. 117, 207 A.2d 522 (1965). In this instance, however, there seems to be no reason why a constructive condition precedent of marriage should be imposed in this agreement, as there is no indication that the parties would have disposed of their interests in the property differently before marriage than during or after marriage.

 The parties fail to note, however, that the consideration for the agreement appears to have been the contemplated marriage, no other form of consideration being recited therein. Normally, in New Jersey a sealed contract does not need consideration. Zirk v. Nohr, 127 N.J.L. 217, 21 A.2d 766 (Ct.E.& A. 1941); Minch v. Saymon, 96 N.J.Super. 464, 233 A.2d 385 (Ch.Div. 1967). However, in this case, although the agreement recites that "the parties have set their hands and seals" to it, no seal appears thereon, but merely the signatures of the parties and the witnesses. The mere recital of sealing, without a seal or other device by way of seal, does not constitute a seal. N.J.S. 1:1-2.1, Fidelity Union Trust Co. v. Fitzpatrick, 134 N.J.L. 250, 46 A.2d 837 (Ct.E.& A. 1946); Continental Purchasing Co., Inc. v. Daniels, 123 N.J.L. 33, 7 A.2d 887 (Sup.Ct. 1939); Beneficial Finance Co. v. Dixon, 130 N.J.Super. 508, 327 A.2d 695 (Dist.Ct. 1974).

 The agreement, however, was made, "in consideration of the mutual covenants, provisions, promises and terms contained herein." Among the provisions is one that, "the parties contemplate marriage to each other, such marriage to be solemnized in the near future." Such a recital of consideration would appear to be sufficient to bring this agreement within that class of contracts for which marriage is in part the consideration. Herr v. Herr, 13 N.J. 79, 85-87, 98 A.2d 55, 58-59 (1953); Gilbert v. Gilbert, 66 N.J.Super. 246, 251-52, 168 A.2d 839, 842 (App.Div. 1961). Because the marriage contemplated was never solemnized, however, there is no valid consideration, and the agreement is therefore void for want of consideration. *fn1"

 However, although the agreement is void, it is not entirely without effect. Plaintiff contends that the statement in the deed conveying the property to both parties was not fully integrated in that it did not apportion the property among the parties as they had intended. Plaintiff seeks to introduce the agreement as showing the intent of the parties as to the unintegrated portion of the agreement. Under New Jersey law there is a rebuttable presumption that a deed to several people that does not recite their respective portions in the property is intended as a division among them equally. When the deed is ambiguous and contested, extrinsic evidence may be considered. Sisco v. New Jersey Bank, 151 N.J.Super. 363, 376 A.2d 1287 (L.Div.1977), rev'd in part on other grounds, aff'd in relevant part 158 N.J.Super. 111, 385 A.2d 890 (App. Div. 1978); Bittle v. Clement, 54 A. 138 (N.J.Ch.Ct. 1903). Even if plaintiff's contention that he has evidence to rebut the presumption were not enough to permit parol evidence as to the intent of the parties, defendant, as evidenced by her disposition and subsequent (apparently contradictory) affidavit, also admits that the deed is not a full integration of the parties' intention as to their respective shares in the property. Thus, to the extent that parol evidence is necessary to determine the intent of the parties as to their shares in the property in the deed, said deed being ambiguous, in accord with Bittle v. Clement, supra, the agreement of August 10, 1984 should be considered as evidence along with the other statements of the parties. Hofer v. Carino, 4 N.J. 244, 72 A.2d 335 (1950). In addition, it is apparently still good law in New Jersey that the parol evidence rule does not apply to parties on the same side of a contract, in this case the deed. Paulin v. Kaighn, 27 N.J.L. 503 (Sup.Ct.1859), rev'd on other grounds 29 N.J.L. 480 (Ct.E.& A. 1861); Apgar v. Hiler, 24 N.J.L. 812 (Ct.E.& A. 1854).

 Parenthetically, the court notes that defendant's affidavit and deposition contradict her answer and counterclaim with reference to plaintiff's alleged gift of one half of the property to her. The court notes that her most recent statement may act as a bar to subsequent invocation of the gift contention. See Gurzo v. American Smelting & Refining Co., 132 N.J.L. 485, 41 A.2d 6 (Ct.E.&A. 1945); Powell v. Mayo, 27 N.J.Eq. 440 (Ch.Ct. 1876). Moreover, inter vivos gifts are disfavored at the common law and there must be strict compliance with the requirements for such gifts. In re Dodge, 50 N.J. 192, 234 A.2d 65 (1967). The requirements for an inter vivos gift are: 1. unequivocal donative intent on the part of the donor (no such donative intent appears given plaintiff's proffer of the agreement executed contemporaneously with the deed); 2. an actual or symbolic delivery of the subject matter of the gift (which is not alleged here); and 3. an absolute and irrevocable relinquishment by the donor of ownership and dominion over the subject matter of the gift to the extent possible, which did not occur as defendant never lived at the property in question), and even a partial surrender of the property in joint names may be insufficient. [ See Stiles v. Newschwander, 139 N.J.Eq. 1, 49 A.2d 572 (Ch.Ct. 1946) rev'd on other grounds 140 N.J.Eq. 591, 54 A.2d 767 (Ct.E.&A. 1947)]; In re Dodge, supra; Canova v. Canova, 146 N.J.Super. 58, 368 A.2d 971 (Ch.Div. 1976).

 Moreover, there is no relationship by blood or marriage (as opposed to contemplated marriage) that might raise the presumption of a gift. Exadaktilos v. Cinnaminson Realty Co., Inc., 167 N.J.Super. 141, 400 A. 2 554, 400 A.2d 554 (L.Div. 1979), aff'd 173 N.J.Super. 559, 414 A.2d 994 (App.Div. 1980). Neither is there any suggestion that defendant in any way detrimentally relied upon any representation of a gift [ See Sommers v. Zuck, 139 N.J.Eq. 245, 50 A.2d 648 (Ch.Ct. 1947)] other than in entering into the mortgage which, according to the answer of the mortgage company (originally a non-diverse party to this action subsequently relieved), such company is apparently willing to reformulate to exclude defendant. Defendant will thus not be heard to argue that a one half interest in the property in question was a gift. For a case in which gifts considered joint property in a broken engagement were discussed in another context (a replevin action), see Mandelbaum v. Weiss, supra.2

 Thus, although there is some difference between the parties as to their understanding of the agreement, that difference is not material because it does not affect the resolution of an issue with respect to any element of the claim or defense with reference to whether the agreement of August 10, 1984 is of any force or effect. See British Airways Board v. Boeing Co., 585 F.2d 946 (9th Cir.1978); SEC v. Research Automation Corp., 585 F.2d 31 (2d Cir. 1978). There is, therefore, no genuine issue of material fact and the parties are entitled to judgment as a matter of law. Summary judgment is entirely appropriate in declaratory judgment actions [ Japan Gas Lighter Assn. v. Ronson Corp., 257 F. Supp. 219 (D.N.J. 1966)] and equitable actions generally ( Lemmon Pharmacal Co. v. Richardson, 319 F. Supp. 375 (E.D.Pa.1970)]. For the above reasons, as a matter of law, the agreement of August 10, 1984 is void for failure of consideration and to this extent plaintiff's motion is denied. However, the agreement is some indication of the intent of the parties as to their proportionate shares in the property at issue in the deed of the same date.





 Parts b. and c. of plaintiff's demand for relief sound in a prayer to quiet title. New Jersey does not rigorously distinguish between bills to quiet title (i.e. bills of peace) and bills to remove a cloud from title (i.e. bills quia timet), which makes pleading such causes somewhat easier Shepherd v. Nixon, 43 N.J.Eq. 627, 13 A.617 (Ct.E.&A. 1887). Moreover, N.J.S. 2A:62-1 et seq., "Actions to Quiet Title in General," obviates some of the common obstacles inherent in equitable suits, such as the requirement of a previous action at law determining title in a plaintiff's favor, a pending adverse action at law and the strict requirement of peaceable possession. McGrath v. Norcross, 71 N.J.Eq. 763, 65 A.998 (Ct.E.&A. 1907). City of Paterson v. Schneider, 31 N.J.Super 598, 107 A.2d 553 (App.Div. 1954); Nixon v. Walter, 41 N.J.Eq. 103, 3 A 385 (Ch.Ct. 1886). An action to quiet title would seem to be what plaintiff seeks here in attempting to protect his title from legal injury Estate of Gilbert Smith, Inc. v. Cohen, 123 N.J.Eq. 419, 196 A. 361 (Ct.E.&A. 1938).

 A suit to quiet title is essentially equitable in nature and, therefore, subject to equitable defenses. Braue v. Fleck, 23 N.J. 1, 127 A.2d 1 (1956). Among these defenses is that there is not a remedy in equity if there is a sufficient remedy at law. In this case, however, there appears to be no adequate legal remedy. Plaintiff is in possession of the property and, therefore, has available no legal action to challenge defendant's claim to the property. Defendant clearly does not wish to utilize legal remedies which would merely allow her to enter and use the property with plaintiff and, moreover, has not shown that she has been kept off that property. She seeks only a monetary settlement of her entitlement. Moreover, neither party contends that there is an adequate legal remedy which would remove the court's equity jurisdiction, a fact which is ordinarily dispositive. See Perlstein v. Pearce, 12 N.J. 198, 96 A.2d 392 (1953). Because defendant raises no objection to the action to quiet title, and because it appears that plaintiff meets the tests of N.J.S. 2A:62-1, I will consider the merits of plaintiff's claims.

 Preliminarily, I note the burdens of proof in actions to quiet title. Robinson-Shore Development Co. v. Gallagher, 41 N.J.Super. 324, 125 A.2d 1 (Ch.Div. 1956), supplemented 43 N.J.Super. 430, 128 A.2d 884 (Ch.Div. 1957), aff'd 45 N.J.Super. 507, 133 A.2d 353 (1957), rev'd., 138 A.2d 726 (1958). Plaintiff must first prove peaceable possession, which he has done by the uncontroverted evidence that he resides at the property, has so resided for a considerable period and defendant has never sought to hinder plaintiff from so doing. Once plaintiff has proved peaceable possession, defendant must prove title which, as discussed above, she has done, at least to a portion of the property. Plaintiff must then demolish defendant's title or show the superiority of plaintiff's title. Plaintiff in this case fails to do so, as both plaintiff and defendant hold under the same muniment of title, the sole question being the proportion of their respective shares. Plaintiff cannot argue that defendant's title is demolished, for thereby his would be demolished as well. Neither can plaintiff argue that his title is legally superior to (as opposed to being physically larger than) defendant's, for to do so would be to contradict the face of the instrument with no evidence proffered to support such an understanding.

 It is perfectly acceptable in an action to quiet title to determine the respective shares of tenants in common as well as to determine that one party alone is entitled to title and possession. Bridgewater Leasing Co. v. Wollman, 94 N.J.Super. 28, 226 A.2d 735 (App.Div. 1967). It is different in an action in partition, which requires the parties to be co-tenants and to have some title in the property before such an action may be maintained. Scott v. Scott, 112 N.J.Eq. 195, 165 A.727 (Ch.Ct. 1933); Hay v. Estell, 18 N.J.Eq. 251 (Ch.Ct. 1867). Plaintiff argues that the defendant has no interest in the property in question. It is, therefore, appropriate to determine whether the defendant has any rights in the action to quiet title for, if plaintiff's argument be accepted, this court need not reach the question of partition.



 Plaintiff contends that he is entitled to the entire property by virtue of Shroser v. Isaacs, 28 N.J.Eq. 320 (Ch.Ct. 1877) and Bittle v. Clement, supra. He argues that both cases stand for the proposition that when there is no specific mention in the deed as to the proportionate shares of tenants in common, they share in proportion to their contribution to the purchase money, even if that means that there would be no sharing as one party paid the entire purchase money. In both cases, there seems to be an indication that mortgage payments are considered a part of the purchase money. If such be the case, the question as to whether the defendant made any contribution to the first mortgage payment would be a genuine issue of material fact, as it is disputed by the parties. It is not necessary to reach that issue, however, for plaintiff's reading of Shroser and Bittle appears to be incorrect. *fn3"

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