Zanzonico v. Zanzonico

• Court: New Jersey Supreme Court
• Writing for the Court: Smith, Joseph L., C. C. J.
• Citation: Zanzonico v. Zanzonico, 46 A.2d 565, 24 N.J.Misc. 153 (N.J. 1946)
• Decision Date: 29 March 1946
• Parties: CARMELA ZANZONICO, PLAINTIFF, v. MICHAEL ZANZONICO ET AL., DEFENDANTS

46 A.2d 565

ZANZONICO

v.ZANZONICO et al.

Supreme Court of New Jersey, Essex County.

March 29, 1946.

Action by Carmela Zanzonico against Michael Zanzonico, individually, and as executor of the last will of Antonio Zanzonico, deceased, and others to recover the possession of realty with appurtenances, $2,000 for mesne profits, and damages in the sum of $10,000.

Judgment for plaintiff for possession of the realty.

McCarter, English & Egner, of Newark, for plaintiff.

Robinson & Morris, of Newark, for defendant Joseph Zanzonico.

SMITH, Judge.

This case is submitted to the Court without a jury. The facts are found to be as stated in the agreed stipulation of facts which are made a part hereof as if fully set forth herein.

This is an action brought by the plaintiff, Carmela Zanzonico, in which the plaintiff demands of the defendants, Michael Zanzonico, individually, and as executor of the last will of Antonio Zanzonico, deceased, Joseph Zanzonico; Ralph Russo, Vincenzo Guzzo and Manuel Monteiro, the possession of a tract of land, with appurtenances, situate in the City of Newark, County of Essex and State of New Jersey, and known as No. 295 South 7th Street, together with the sum of $2,000 for mesne profits and damages in the sum of $10,000.

On June 26, 1933, property described in the complaint was conveyed to Antonio Zanzonico and Carmela Zanzonico, his wife, thereby creating an estate by the entirety. Subsequently Antonio Zanzonico executed two mortgages covering said property, in which Carmela, his wife, did not join. The first of said mortgages was executed March 31, 1936, and the second, July 27, 1938.

A decree for money was obtained in the New Jersey Chancery Court by Antonio Zanzonico against Carmela Zanzonico, after the mortgages mentioned above were executed. A writ of execution was issued on that decree and on April 18, 1939, the Sheriff of Essex County purported to sell ‘all of the right, title and interest’ of Carmela Zanzonico in and to the premises described in the complaint, in order to satisfy the writ. Antonio Zanzonico was the successful bidder at the sale and a sheriff's deed was delivered to him describing the same property which is embodied in the within complaint. The plaintiff does not question the regularity of the procedure by which the writ of execution was issued, the sale held, and the sheriff's deed delivered.

Antonio Zanzonico died on January 20, 1942, devising all of his property to Michael Zanzonico, codefendant herein. At the time of the death of Antonio Zanzonico, Carmela Zanzonico, the plaintiff, was his wife. The defendant Joseph Zanzonico is a mortgagee in possession.

The question for this court to determine is the quantum of the estate which passed by the sheriff's deed under the writ of execution. It does not appear from a review of the cases that this precise point has been decided heretofore by the courts of this State.

The decisions, in other jurisdictions, are in conflict due to the varying interpretations of the effect of statutes concerning the property rights of married women. Massachusetts, in Lisker v. Askins, 266 Mass. 498, 165 N.E. 513, holds that statutes enabling married women to hold and dispose of real property in the same manner as if they were sole, are inapplicable to estates by the entirety, and that the wife's interest in real estate held by the husband and herself, as tenants by the entirety, cannot, during their joint lives, be attached and sold by the wife's creditor. The same conclusion has been reached in Pennsylvania, where, in the case of Beihl v. Martin, 236 Pa. 519, 84 A. 953, 42 L.R.A.,N.S., 555, the court held that the expectancy of survivorship of a man holding an estate by entireties, with his wife, is not subject to a lien in favor of his individual judgment creditors.

Under the Married Women's Property Act of Delaware, that state has held that a judgment against the husband creates no lien upon property held by husband and wife as tenants by the entireties. Hurd v. Hughes, 12 Del.Ch. 188, 109 A. 418.

The law of Maryland is to the same effect and holds that a tenant by the entireties has no separate interest which can be subjected to a lien of a judgment against him alone and seized and sold on execution. Blenard v. Blenard, Md., 45 A.2d 335.

On the other hand, New York, in Hiles v. Fisher, 144 N.Y. 306, 39 N.E. 337, 30 L.R.A. 305, 43 Am.St.Rep. 762, holds that the husband has a right to mortgage his interest, which is a right to the use of an undivided half of the estate during the joint lives of husband and wife, and to the fee in the event he survives his wife. A foreclosure of the mortgage entitles the grantee to become a tenant in common with the wife, during the joint lives of husband and wife, and owner in fee, in the event the husband survives the wife. See also Bertles v. Nunan 92 N.Y. 152, 44 Am.Rep. 361; Moore v. Denson, 167 Ark. 134, 268 S.W. 609; Ganoe v. Ohmart, 121 Or. 116, 254 P. 203.

The weight of authority favors the Massachusetts rule as is stated in 30 Corpus Juris, § 106(6), at page 572, as follows: ‘But the weight of authority is to the effect that, where real property is held as an estate in entirety, the interest of neither spouse is liable for the debts of the other, a conveyance by the husband and wife, jointly passes title to the property, clear of any claim of creditors of the husband; a judgment against one spouse alone is not, during the joint lives of the tenants of the estate, a lien on the land, and during coverture there can be no sale of any part on execution against either.'

Corpus Juris Secundum, vol. 41, Husband and Wife, § 34, at page 471, states that: ‘the right of the survivor to the whole estate is merely an incident of an estate by the entirety, and does not constitute a remainder, either vested or contingent.'

At page 475 of the same volume, we find the statement that: ‘Where the common-law rights and disabilities of both husband and wife attach to the interest and title of each arising under a tenancy by entirety, the wife's interest cannot be attached and sold by the wife's creditor during the joint lives of the husband and wife, since the creditor cannot do that which the wife cannot do.'

A conveyance of real property to a husband and wife creates an estate by the entirety and the conveyance is to they unity of husband and wife. Buttlar v. Rosenblath, 42 N.J.Eq. 651, 9 A. 695, 59 Am.Rep. 52. The conveyance in estates by the entirety being to the unity, the existence of the marital relation at the time of the conveyance is essential. Den v. Hardenbergh, 10 N.J.L. 42, 18 Am.Dec. 371. The right of survivorship exists between the husband and wife since the estate belongs to the unity and the right of survivorship cannot be defeated by any conveyance which either party may make individually. Den v. Gardner, 20 N.J.L. 556, 45 Am.Dec. 388.

At common law real property held by the entirety is subject to seizure and sale by the husband's creditors to the extent at least of the husband's right to the possession and use of the property, during the joint lives of the spouses. Washburn v. Burns, 34 N.J.L. 18. But the wife's interest in real property held by husband and wife as tenants by the entirety cannot during their joint lives be attached and sold by the wife's creditor. Lisker v. Askins, supra, 41 C.J.S., Husband and Wife, § 34, p. 471.

The Married Woman's Act of 1852 insofar as it affects an estate by the entirety, gives the wife her own half...