Michalski v. Michalski

50 N.J.Super. 454, 142 A.2d 645 (1958)

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Nature of the Case

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Facts

The parties to this action were husband (P) and wife (D). In 1949, they entered an agreement which gave them each an interest in certain properties as tenants in common. The agreement provided, among other things, that neither party would sell their interest in any of the properties without consent of the other, or do anything else to destroy the tenancy. Subsequent to the agreement, the parties separated and were involved in a series of criminal and civil actions against each other. In this action, D argues that the portion of the agreement discussed above prohibits partition during the lifetime of the parties. P counters that the provision does not prohibit partition, and that even if it does, it is an unreasonable restraint on alienation and is invalid. The lower court found that P was entitled to a partition, holding that a co-tenant's right to partition is absolute in the absence of a clear agreement to the contrary and that this particular agreement did not clearly and definitely bar partition. It further found that even if the agreement did bar partition, it was unreasonable, unenforceable and against public policy, even if the prohibition was only for the parties' joint lives, and should not be given effect. D appeals.