140 N.J. Eq. 487 | N.J. Ct. of Ch. | 1947
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 23d 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). 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,726, § 225. This construction has been followed in our courts without discussion in many cases of which the latest seems to beBrands v. Cassedy,
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,
In the answer which is before me, there is no allegation that defendants have been induced to take or abstain from, any action by complainants' promise. The agreement is executory on both sides. The power to maintain a suit for partition has been an incident to the title of a tenant in common or joint tenant, since the time of Henry VIII. It is a right that may be exercised by an adult tenant, without regard to the interests of the other tenants or the inconvenience or hardship that may result.Stevens v. Enders,