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Michalski v. Michalski - 50 N.J. Super. 454, 142 A.2d 645 (Super. Ct. App. Div. 1958)


In addition to the requirement of a clear manifestation of intent, the rule has become established that a restraint on alienation must not be fixed for an unreasonable time.


Plaintiff husband, 69 years old, filed a complaint against defendant wife, 83 years old, to partition three properties owned by the parties as tenants in common. Defendant raised as a defense Article 2 of an Agreement previously entered by them. The article stipulated that the parties “shall not do or permit anything that will defeat the common tenancy of said properties.” According to the defendant, the aforementioned article effectively prohibited partition during the lifetime of both parties or at least during the period of the life of the shorter lived of the parties. The plaintiff countered by saying that the article did not prohibit partition; and that if it did, it was an unreasonable restraint on alienation and was invalid. The trial judge determined that the plaintiff was entitled to partition as a matter of right since Article 2 of the Agreement did not bar partition, and if it did, it would be unreasonable restraint on alienation lacking a definite time period. Defendant appealed.


Did the Agreement between the parties, which prohibit partition, constitute an unreasonable restraint on alienation?




The Court held that the agreement not to partition until one of them died was not unreasonable, especially given the fact that the parties were persons of advanced age. According to the Court, with regard to the advanced age of the parties, the restraint upon partition would not last for longer than a reasonable time. However, the Court found that the circumstances of the clearly established that it would be manifestly unjust to enforce the agreement in bar of plaintiff’s partition action. The Court noted that the circumstances have so changed that it would be inequitable to deny the partition since the intent of the parties has been entirely destroyed. Hence, the judgment directing the partition of the properties was affirmed.

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