Plaintiffs are the contract purchasers of vacant land owned by defendant-seller Wayne A. Blanda. They bring this action for specific performance of that contract and join as a defendant, Blanda's wife, Irene. She did not sign the contract. Title to the property in question is vested in Wayne A. Blanda, only, by virtue of a deed, dated August 2, 1982, and recorded August 5, 1982.
The entire tract as described in the 1982 deed is an 80-acre farm. Blanda and his wife (whom he married in 1983) live in the farmhouse on the property.
The contract is dated October 23, 1986. Under its terms, Blanda agreed to convey a seven-acre part of the 80-acre farm. The purchase price is $49,000. Plaintiffs paid a deposit of $25,000 and are obliged to pay the balance of $24,000 at closing. The conveyance was subject to subdivision approval to be obtained by the purchasers. They did so at considerable expense. Approval was granted on December 1, 1986. Blanda, thereafter, sought delays of the closing to which the purchasers agreed up to July 1987. Thereafter, they pressed him to close and finally made "time of the essence" for September 2, 1987. He refused to deliver a deed at that time. He had no legal justification for his refusal. Plaintiffs seek a judgment for specific performance against him. They are entitled to it. However, that would not resolve their problem. Under the contract, plaintiffs are to receive marketable and insurable title. Their title company will not insure the title unless Irene Blanda joins in the deed. She refuses to do so. The issue then is whether she has an interest and, if so, should she be compelled, on terms, to sign the deed. The resolution of that issue
depends on a judicial reading of N.J.S.A. 3B:28-3.*fn1 The statute provides as follows:
As to real property occupied jointly by a married person with his or her spouse acquired on or after May 28, 1980, as their principal matrimonial residence, every married person shall be entitled to joint possession thereof with his or her spouse during their marriage, which right of possession may not be released, extinguished or alienated without the consent of both spouses except by judgment of a court of competent jurisdiction. All other real property owned by either spouse which is not the principal matrimonial residence may be alienated without the consent of both spouses.
The statute was one of the series of bills adopted by the Legislature in 1979 to revise the Probate Code of New Jersey. The legislative purpose was to bring New Jersey probate law into closer conformity to the Uniform Probate Code.
The Uniform Probate Code (Section 2-113) abolished estates of dower and curtesy. The commissioners were of the view that dower and curtesy were anachronistic burdens on the alienation of property by its owner. When the owner died intestate, the surviving spouse was amply protected by laws of intestate succession. See N.J.S.A. 3B:5-3. One spouse could, however, cut off the survivor by leaving little or nothing by will. The commissioners suggested that such a harsh possibility be obviated by providing for the elective share of the surviving spouse. N.J.S.A. 3B:8-1 et seq. With the abolition of dower and curtesy, there would no longer be protection to a spouse against the life-time divestiture of real property by the owner-spouse. That possibility was not addressed in the model code. See generally Uniform Probate Code (1983 ed.) Commentary to § 2-113 and 2-201.
Our Legislature apparently noted that gap created by the Uniform Probate Code. If dower and curtesy were abolished,*fn2 then the title-holding spouse, during his or her lifetime, could convey all of his or her real estate without limitation and
potentially render the elective share of little value to the survivor. Therefore, in enacting N.J.S.A. 3A:35-5, dower and curtesy were abolished but with an exception. That exception is now N.J.S.A. 3B:28-3. Under its terms defendant, Irene Blanda, has a property interest in the "principal matrimonial residence" entitling her to a "right of possession" of which she may not be involuntarily deprived "except by judgment of a court of competent jurisdiction."
In circumstances such as those presented here, under prior common law, a court of equity would not compel the owner-husband to specifically perform his contract to sell, when the wife had not joined in it and refused to sign the deed. Bateman v. Riley, 72 N.J. Eq. 316 (Ch.1906). Two exceptions were made to that rule -- in order to avoid an unjust result. The first applied when it could be shown that her refusal was a device arranged by the husband to evade his contractual obligation. The second arose when the proofs showed that the wife was aware the contract was being signed; acquiesced in it by her conduct, and then refused to sign the deed for an ulterior motive -- such as extracting the payment of a higher price. Stein v. Francis, 91 N.J. Eq. 205, 206 (Ch.1919). In such case a court of ...