Wujciak v. Wujciak, 158/123.

• Decision Date: 22 September 1947
• Docket Number: 158/123.
• Citation: 55 A.2d 164
• Parties: WUJCIAK et al. v. WUJCIAK et al.
• Court: New Jersey Court of Chancery

55 A.2d 164

WUJCIAK et al.

v.WUJCIAK et al.

158/123.

Court of Chancery of New Jersey.

Sept. 22, 1947.

Action by Mary (Marja) Wujciak and husband against Christina Wujciak and husband for partition of land. On complainants' motion to strike out the answer.

Motion granted.

Syllabus by the Court

.

An oral agreement between tenants in common not to partition their land before a certain date is within the Statute of Frauds, and is not a good defense to a bill for partition. R.S. 25:1-2 and 5(d), N.J.S.A.

Precker & Precker, by Michael S. Precker, all of Newark, for complainants.

Rospond & Rospond, by J. Thaddeus Rospond, all of Newark, for defendants.

BIGELOW, Vice Chancellor.

To this bill of partition, the defendants have answered that they and the complainants orally agreed with each other not to bring any suit for the partition of the land before August 23, 1948, when a certain mortgage will mature. The complainants now move to strike the answer on the ground that the alleged agreement is unenforceable under those provisions of our Statute of Frauds which are known as R.S. 25:1-2 and 5(d), N.J.S.A. The first of these sections enacts that no interest in real estate shall be surrendered unless by deed or note in writing, and the other, that no action shall be brought upon an oral ‘contract or sale of real estate, or any interest in or concerning the same.’ While the latter section expressly forbids only the bringing of an action on such a contract, it is construed to preclude the use of such a contract as a defense. 37 C.J.S., Statute of Frauds, § 225, p. 726. This construction has been followed in our courts without discussion in many cases of which the latest seems to be Brands v. Cassedy, 124 N.J.Eq. 417, 1 A.2d 639; Id., 125 N.J.Eq. 346, 5 A.2d 685.

I have found no cases dealing with the exact question now before me, but there are a number which may point toward the proper answer. Among the oral agreements or surrenders that have been held unenforceable are: The consent of one who enjoys an easement of light and air, that the owner of the servient tenement may build in disregard of the easement. Ware v. Chew, 43 N.J.Eq. 493, 11 A. 746. Permission given an abutting owner to erect a building encroaching on complainant's land. Capone v. Ranzulli, 99 N.J.Eq. 627, 134 A. 553. An agreement by a land owner with his next door neighbor restricting the use of his land. Droutman v. E. M. & L. Garage, 129 N.J.Eq. 1, 19 A.2d 25; Id., 129 N.J.Eq. 545, 20 A.2d 75. A promise by a mortgagee, after default, not to take possession. Montuori v. Bailen, 290 Mass. 72, 194 N.E. 714, 97 A.L.R. 789, and Annotation. And an agreement not to foreclose for a certain time. ‘Not only is a mortgage an interest in lands, but the privileges and powers inherent in it and forming a necessary and important part thereof are also interests in lands. * * * If there is no power to enforce payment by foreclosure, a necessary characteristic of a mortgage would be lacking.’ George v. Meinersmann, 119 N.J.L. 460, 197 A. 1, 2. This decision may be compared with the line of cases where such contracts have been enforced on principles of promissory estoppel because the mortgagor had changed his position in reliance on the extension. Examples are Tompkins v. Tompkins, 21 N.J.Eq. 338, and Van Syckel v. O'Hearn, 50 N.J.Eq. 173, 24 A. 1024....