Newman v. Chase/Concurrence-dissent Pashman

PASHMAN, J. (concurring in part and dissenting in part).

I concur in the result reached by the majority with respect to plaintiff's request for partition of the Chase family home. I must dissent, however, from that part of the majority opinion which provides plaintiff with a right to an accounting as a tenant in common in this property during the joint lives of Mr. and Mrs. Chase.

The right to an accounting, like the action for partition, is essentially an equitable remedy. Lohmann v. Lohmann, 50 N.J.Super. 37, 141 A.2d 84 (App.Div.1958); Meisler v. Meisler, 4 N.J.Super. 579, 67 A.2d 907 (App.Div.1949); Neubeck v. Neubeck, 94 N.J.Eq. 167, 119 A. 26 (E. & A.1922); O'Connell v. O'Connell, 93 N.J.Eq. 603, 117 A. 634 (E. & A.1922); Bilder v. Robinson, 73 N.J.Eq. 169, 67 A. 828 (Ch.1907); 86 C.J.S. Tenancy in Common ss 77, 78; 4 Pomeroy, Equity Jurisprudence (5 ed. 1941), s 1421 at 1078-1081. Consequently, the same equitable considerations which warrant the denial of a partition in this case must also be measured against the necessity for an accounting. An assessment of these factors impels me to conclude that Both partition and ac-counting should be denied. Plaintiff should retain only the possibility of a fee simple interest (the so-called ‘right of survivorship’) subject to defeasance should Mrs. Chase survive her husband. In King v. Greene, 30 N.J. 395, 412, 153 A.2d 49 (1959) we held that this ‘speculative’ interest is freely alienable and can be made subject to execution for a spouse's debts. Cf. [p270] In re Ved Elva, Inc., 260 F.Supp. 978, 981-982 (D.N.J.1966) ; Joseph Harris & Sons, Inc. v. Van Loan, 23 N.J. 466, 129 A.2d 571 (1957).

Although the incidents of estates by the entirety were founded upon the antiquated notion of legal unity of husband and wife, the continued utility and vitality of that form of joint ownership persist within specified circumstances. 4A Powell, Real Property, 623; 4 Thompson, Real Property (1961 rev.), ss 1784-92 Passim; Gery v. Gery, 113 N.J.Eq. 59, 64-65, 166 A. 108 (E. & A.1933); Ten Eyck v. Walsh, 139 N.J.Eq. 533, 540, 52 A.2d 445 (Prerog.1947). For example, as the majority observes, this tenancy ‘serves the pur-poses which are achieved in many states by statutory or constitutional homestead laws.’ Ante at 480. In Fort Lee Savings & Loan Ass'n v. LiButti, 106 N.J.Super. 211, 254 A.2d 804 (App.Div.1969), reversed for rea-sons stated in the dissenting opinion below, 55 N.J. 532, 264 A.2d 33 (1970), Judge Carton, the dissenting judge in the Appellate Division, described this underlying social function as follows:

The social purpose of the tenancy by the entirety seems to be to solidity the marital status by encouraging and protecting home ownership and to protect and insulate the institution of marriage from the onslaught of creditors. Upon death of one of the spouses, it assures the survivor, normally the wife, possession of a home free and clear of the individual indebtedness of the other.

( 106 N.J.Super. at 216, 254 A.2d at 807)

The language cited by the majority from Sanders v. Sanders, 118 N.J. Super. 327, 330, 287 A.2d 464 (Ch.Div.1972) further indicates the continued viability and importance of certain features of this traditional tenancy. See also Ten Eyck v. Walsh, supra, 139 N.J.Eq. at 540, 52 A.2d 445.

Protection of the marital home when a family has suffered financial reversals, as in the present case, is thoroughly consistent with federal bankruptcy principles which extend a ‘fresh start’ in life to honest but unfortunate debtors and their families. Local Loan v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230, 1235 (1934); Stellwagon v. Clum, 245 U.S. 605, 617, 38 S.Ct. 215, 62 L.Ed. 507, 512 (1918); [p271] Williams v. U.S. Fidelity, 236 U.S. 549, 554-55, 35 S.Ct. 289, 59 L.Ed. 713, 716-17 (1915); 11 U.S.C.A. s 24. Requiring Mrs. Chase to make an accounting in this case would contradict the ‘fresh start’ sought by her husband through the bankruptcy proceedings. Mrs. Chase, though not a party to the bankruptcy proceedings, would be directly and unfairly subject to its ‘penalties.’ Moreover, the imposition of this additional burden on the family might result in dispossession of the family, forcing it to become a ‘charge upon the state’ and thereby defeating one of the salient purposes of this tenancy. See ante at 480. Finally, there is something offensive about an outside bidder at a bankruptcy sale intruding upon the privacy of a marital home and obtaining a substantial right for an inordinately low bid. In this respect, I join with my Brother Sullivan who observes that the accounting ordered by the Court today ‘smacks of the bankruptcy sale reaching into the marital union itself.’  Ante at 482. As a matter of equity, I would not permit it.

Obviously, were this estate relinquished as a family homestead or were the property devoted to a com-mercial use, the protective limitation on the rights of the plaintiff would dissipate and equity might then grant him an accounting. Precedent exists for provid-ing relief under such circumstances. See, e.g., Schulz v. Ziegler, 80 N.J.Eq. 199, 83 A. 968 (E. & A.1912) (husband Voluntarily alienated his interest in the es-tate); Lohmann v. Lohmann, supra, 50 N.J.Super. 37, 141 A.2d 84 (husband and wife jointly owned several Business properties including a tavern, a restaurant and a parking lot); Neubeck v. Neubeck, supra, 94 N.J.Eq. 167, 119 A. 26 (husband and wife jointly owned income-producing rental properties); Bilder v. Robinson, supra, 73 N.J.Eq. 169, 67 A. 828 (husband and wife jointly owned income-producing rental properties).

However, such situations are readily distinguishable from the case before us since here we are concerned with a family homestead. The court in Neubeck v. Neubeck, supra, 94 N.J.Eq. 167, 119 A. 26, for ex-ample, invoked equitable principles to reach a con-clusion based on this distinction. Thus, while the [p272] court permitted an accounting as to all jointly held commercial property for a cotenant by the entirety who had abandoned her husband, the court denied similar relief as to that jointly held property which was still occupied as a family residence. Accord, O'Connell v. O'Connell, supra, 93 N.J.Eq. 603, 117 A. 634. While I recognize that these cases, unlike the present case, did not involve a technical ‘ouster’ of one cotenant by the other, the protection which the Court afforded the familial abode is illustrative of the judicial deference which is accorded that interest.

By advocating the denial of an accounting in the instant case, I should not be understood to suggest a complete resurrection of the ancient incidents of the estate by the entirety. The Married Women's Act of 1852 eliminated many of the more inequitable and objectionable aspects of that form of joint own-ership. In addition, as former Chief Justice Weintraub observed in King v. Greene, supra, 30 N.J. at 413, 153 A.2d at 60 (Weintraub, C.J., dissenting), ‘(t)he estate by the entirety is a remnant of other times.’ Never-theless, while it has been clearly held that the tenancy by the entirety ‘has many of the aspects of a tenancy in common,. . . (it) has not been abolished in this jurisdiction. It still exists in Sui generis species of tenancy with its origin solely in the marriage state.’  Gery v. Gery, supra, 113 N.J.Eq. at 64, 166 A. at 110.

I recognize that case law regards the purchaser of a spouse's interest in a tenancy by the entirety as ob-taining a present possessory interest as a tenant in common. Nonetheless, the entitlement of the pur-chaser to an accounting, where there is an ouster by one cotenant, has never been applied to a set of cir-cumstances precisely analogous to that before us. I would urge that we not do so today. I would deny both partition and accounting in this case.