Newman v. Chase/Concurrence-dissent Sullivan

SULLIVAN, J. (concurring and dissenting).

In Mueller v. Mueller, 95 N.J. Super. 244, 248, 230 A.2d 534, 536 (App.Div.1967), I noted that the estate of tenancy by the entirety ‘spawns numerous title problems and disputes.’ This is but another example. I agree that plaintiff is not entitled to partition. However, although I recognize that it follows established case law, I disagree with that part of the majority decision which holds that plaintiff has a present possessory interest in the homestead property as a tenant in common with the other spouse during the coverture and is entitled to an accounting of that spouse's possession.

We are here concerned with the family homestead owned by the husband and wife as tenants by the entirety. Each, and both as an entity, own the entire interest. Each, and both, are entitled to the entire possession. While the husband and wife are considered tenants in common during their joint lives, this is solely by virtue of their being married to each other.

A purchaser at a bankruptcy sale, even though the interest of the debtor spouse is purchased, cannot step into that spouse's shoes as a tenant in common with the other spouse. That smacks of the bankruptcy sale reaching into the marital union itself.

I would hold that the bankruptcy sale purchaser of a debtor-spouse's interest in the marital homestead owned by [p269] the entirety does not acquire a present possessory interest in such property as a tenant in common with the other spouse and is not entitled to an accounting from the other spouse of that spouse's possession during the coverture.

Should the debtor-spouse survive the other spouse, the purchaser would then become the owner of the property. If the marriage is terminated by divorce, the purchaser would then own an undivided one-half interest in the property as a tenant in common. He is entitled to no more.