Worrall Frederick Mountain

“ The life interest in residential real property for the joint lives of two spouses is a speculative asset, likely to bring only a low price and hence to be of little avail to a creditor seeking satisfaction of a spouse's debt. This consideration alone might not operate to deny to a purchaser [p266] the right of partition, especially as it has long been held that life estates are parti-ble. ”

“ The only benefit inuring to the tenant in possession is the value of her use and occupation of the property-in effect, the imputed rental value of the house. As a general rule, since each cotenant has an undivided interest in the whole estate, each is entitled to occupy the entire property. ”

“ It is an established principle that a court of equity, in decreeing partition, does not act ministerially and in obedience to the call of those who have a right to the partition, but founds itself on its general jurisdiction as a court of equity, and administers its relief Ex aequo et bono, according to its own notions of general justice and equity between the parties. ”

“ The cited cases involve for the most part commercial properties with respect to which rents paid by third parties were collected by the cotenant in possession. It is settled law in New Jersey that in such circumstances the cotenants out of possession are entitled to an accounting [p267] for their share of the rents, issues and profits. ”

“ The facts of the case are not in dispute. Defendants, Arthur and Dorothy Chase, took title as tenants by the entirety to a one-family house in Toms River, in November 1971, having obtained a mortgage for the full purchase price of $25,990 from the Lincoln Savings Bank. With their [p259] two small children, they have occupied the home since January 5, 1973. [2] Defendant, Arthur D. Chase filed a petition in bankruptcy on October 2, 1972, and was discharged in bankruptcy on February 5, 1973. On November 20, 1972, plaintiff purchased from the trustee in bankruptcy all Mr. ”