Summary
In Riccio v. Riccio, 101 A. 426 (Ch. 1917), our former Court of Chancery, giving a very broad interpretation to the holding in Schulz, concluded that the reasoning of that case applied to the situation in which one spouse sought partition as against the other spouse of the possessory interest during coverture.
Summary of this case from Newman v. ChaseOpinion
No. 40/750.
06-29-1917
RICCIO v. RICCTO.
Eugene Dotto and Philip J. Schotland, both of Newark, for complainant. Riker & Riker and Richard Hartshorne, all of Newark, for defendant.
Action between Josie Riecio and Gaetano Riccio. Decree for complainant.
Eugene Dotto and Philip J. Schotland, both of Newark, for complainant. Riker & Riker and Richard Hartshorne, all of Newark, for defendant.
FOSTER, V. C. This is an action for the partition by absolute sale of certain real estate in the city of Newark owned by the parties who are husband and wife. On the hearing it was established that the parties were married on October 27, 1898, that they have three children, and that as a result of quarrels they separated about May 1, 1915.
Complainant before her marriage worked as a button hole maker, and continued to do some of this work after her marriage, from time to time, and claims to have paid part of the purchase money of the property from her work. Defendant is a tailor and claims to have paid all of the purchase price, over the amount of the money borrowed on mortgage, from his savings. About May 20, 1902, the parties purchased the premises in question for $2,500. Of this sum $2,200 was obtained on mortgage from a building and loan association, and complainant claims that she and defendant each contributed $200 to make up the balance of the purchase money and to pay for searches and other expenses connected with the passing of title. Defendant denies* that complainant contributed any money for these purposes and claims that he furnished all the money required to complete the purchase above the amount obtained on the mortgage and to carry the property. The deed for the property conveys it to the parties as "Gaetano Riccio and Josie Riccio, his wife."
Complainant claims that a mistake was made in the deed in thus designating herself and her husband, the defendant, as temints by the entirety, and that it violated the agreement she had made with her husband regarding the form in which they should take title, which was, that they each should contribute one-half of the purchase price and an equal share for the maintenance of the property, and that they should be equal partners in the ownership of the property, and that they were to be tenants in common in the ownership of the property. Defendant denies this and claims there was a mistake made in the form of the deed; that when he purchased the property he was unfamiliar with real estate transactions; that in examining the deed under which his grantors held, he noticed it was made to "Justus Schneider and Phillipina Schneider, his wife," and he directed or consented to having his deed made out in the same way, assuming that was the legal way it should be done; that he has paid the purchase price for the property and the expenses of its maintenance; and that he intended that the only interest complainant, as his wife, should have in the property was such as the laws of the state gave her.
The impression made upon me at the hearing was that the claim of a mistake in the deed was an afterthought on the part of both parties which had arisen because of the serious differences between them. These differences it seems cannot be reconciled, as complainant claims defendant assaulted and stabbed her, and defendant claims complainant since her separation from him has been living in adultery with another italian.
Counsel for complainant apparently take somewhat the same views of the facts that I have because they contend that if it is not established that a mistake was made in the deed as claimed, and if it be found that the parties are tenants by the entirety, nevertheless there should and can be a partition of the property under the facts and on the authority of Schulz v. Ziegler, 80 N. J. Eq. 199, 83 Atl. 968, 42 L. R. A. (N. S.) 98.
My consideration of the opinion of ViceChancellor (now Chancellor) Walker in this case and of the opinion of Mr. Justice Parker in speaking for the Court of Errors and Appeals in affirming the Vice Chancellor's determination shows that it does not entirely sustain complainant's contention or sanction the relief to the extent asked for in her bill. Justice Parker, speaking for the court, said: "We hold, therefore, that by virtue of an estate by entireties, as modified by the married woman's act, the seisin of husband and wife during the joint lives is essentially a tenancy in common, terminated on the death of either, with remainder in fee to the survivor; and that the right of the husband may be transferred by him to a third party who thereby becomes tenant in common for the joint lives in the husband's place; and that partition may be had between such purchaser and the wife of this tenancy in common, but without affecting in any way the common-law right of survivorship."
It will be observed from this statement of the law, that if a sale of the premises be decreed it must not be an absolute sale, but must be limited to the right of possession during the joint lives of complainant and defendant, in order that the right of survivorship may not be affected in any way.
The prayer of the bill in asking for an absolute sale of the premises and the payment to complainant of one-half of the amount realized therefrom over the amount of the present incumbrances thereon, as her share of the property is too broad, but a sale of the right of possession during the joint lives of the parties will be advised, and an accounting may be taken of the income received from and the expenses incurred in carrying the property. Counsel will be heard if desired on the period to be covered in the accounting.