Borough of New Shrewsbury v. Block 105, Lot 11, Assessed to Columbus Spellman Estate

• Decision Date: 24 January 1969
• Docket Number: No. F--3951,F--3951
• Citation: Borough of New Shrewsbury v. Block 105, Lot 11, Assessed to Columbus Spellman Estate, 250 A.2d 53, 104 N.J.Super. 360 (N.J. Super. 1969)
• Parties: BOROUGH OF NEW SHREWSBURY, a Municipal Corporation of the State of New Jersey, Plaintiff, v. BLOCK 105, LOT 11, ASSESSED TO COLUMBUS SPELLMAN ESTATE; Block 105, Lot 24, Assessed to Randall Phipps; Block 105, Lot 25, Assessed to Randall Phipps;Block 106C, Lot 7, Assessed to Samuel Tanzymore; Block 139, Lots 14--14, 17,Assessed toJoseph A. Fruci; Block 140, Lots 3--23, Assessed to Mary Sundra; Block 142, Lots 1--169, 198--382, 439--605, 624, 625, 662--665, 674--689, 694--703, 706--802, 811--819, 825--827, 831--838, 841--854, 859--1060, Assessed to HerbertHarvey, Defendants.
• Court: New Jersey Superior Court

Page 360

104 N.J.Super. 360

250 A.2d 53

BOROUGH OF NEW SHREWSBURY, a Municipal Corporation of the State of New Jersey, Plaintiff, v. BLOCK 105, LOT 11, ASSESSED TO COLUMBUS SPELLMAN ESTATE Block 105, Lot 24, Assessed to Randall Phipps; Block 105 Lot 25, Assessed to Randall Phipps;Block 106C, Lot 7 Assessed to Samuel Tanzymore; Block 139, Lots 14--14 17,Assessed toJoseph A. Fruci; Block 140, Lots 3--23, Assessed to Mary Sundra; Block 142, Lots 1--169, 198--382, 439--605, 624, 625, 662--665, 674--689, 694--703, 706--802, 811--819, 825--827, 831--838, 841--854, 859--1060, Assessed to HerbertHarvey, Defendants.

No. F--3951.

Superior Court of New Jersey, Chancery Division.

Jan. 24, 1969.

Martin M. Barger, Long Branch, for plaintiff (Reussille, Cornwell, Mausner & Carotenuto, Red Bank, attorneys).

Herbert Harvey, pro se.

Stephen J. Moses, Hackensack, for defendant, Dorothy De Hamidian.

LANE, J.S.C.

In this in rem tax foreclosure action defendant Herbert Harvey, claiming to be a mortgagee of the properties included in Schedule 7, has moved for a dismissal of the action as to that schedule on the ground that payment of some part of the taxes assessed against the property had been made within four calendar years next preceding the commencement of the action. Defendant Dorothy De Hamidian joins in the motion to dismiss. She seeks, however, to reserve to herself the right to move on the same ground at a later time to dismiss the complaint as to her. In view of the fact that matters outside the pleadings have been relied upon, the motion will be treated as a motion for summary judgment.

The plaintiff seeks to foreclose a certificate of tax sale held November 5, 1964. The complaint was filed June 4, 1968 alleging that no part of any general land tax levied or assessed against the land had been paid for four calendar years next preceding the date of the filing of the complaint, and that no part of the general land tax levied and assessed against the land for the year 1968 had been paid.

It is admitted by plaintiff that it received payments in the years 1964, 1965 and 1966 of taxes due prior to June 30, 1963. Such payments were made pursuant to an order dated May 10, 1963 in a prior foreclosure suit bearing Docket No. F--3433--60 involving the same property. That order provided that the premises in question could be redeemed by the payment to the borough by the record owner or his agent of $6,500 'agreed upon by the parties as the sum due and owing to the Borough to June 30, 1963 * * *.' The order further provided that the payments were to be made:

$1,700 on or before June 1, 1963

$1,600 on or before May 1, 1964

$1,600 on or before May 1, 1965

$1,600 on or before May 1, 1966 No other tax payments were received. No part of the taxes assessed for the second half of 1963, 1964, 1965, 1966, 1967 and 1968 have been paid.

Initially, Harvey objects to the consideration by the court of an affidavit submitted by plaintiff incorporating the fact that the payments made as above set forth were made as a result of a prior order of this court for taxes that accrued before June 30, 1963. The basis for his objection is that the certificate of tax sale involved in this action states, 'Sale is subject only to municipal liens accruing after December 31, 1963,' and that evidence should not be received to rebut the statutory presumption that such was an accurate statement.

R.S. 54:5--52 provides:

'The certificate of sale shall be presumptive evidence in all courts in all proceedings by and against the purchaser, his representatives, heirs, and assigns, of the truth of the statements therein, of the title of the purchaser to the land therein described, and the regularity and validity of all proceedings had in reference to the sale. After two years from the record of the certificate of sale, no evidence shall be admitted in any court to rebut the presumption, unless the holder thereof shall have procured it by fraud, or had previous knowledge that it was fraudulently made or procured.'

It has been held that the only purpose of that statute is to aid in the enforcement and collection of unpaid taxes and assessments validly made. Hudson County Park Commission v. Jacobson, 132 N.J.L. 287, 288, 40 A.2d 201 (Sup.Ct.1944). To allow Harvey to rely upon that statute and cause this court to disregard its own record would result in complete injustice. Vice-Chancellor Jayne, in Gilbert v. Pennington Trap Rock Co., 135 N.J.Eq. 587, 39 A.2d 647 (Ch.1944), pointed out the nature of equity jurisprudence:

'Equity jurisprudence in reality is a philosophy which can never be obliterated or abolished in any land or country where good faith honest and fair dealing constitute a desirable standard of human conduct. The principles of equity are and should be sufficiently flexible to enable courts to determine from all the circumstances of each particular case whether or not the advantage sought by the litigant is unconscionable. In searching for the needle, one must not ignore the haystack in which it is imbedded.' (at p. 596, 39 A.2d at p. 651)

The situation here is similar to that which confronts the court where an attempt is made to use the statute of frauds as an instrument of fraud. See Willig v. Friedberg, 108 N.J.Eq. 17, 21, 153 A. 535 (E. & A.1931). Harvey was a defendant in the prior action. The entry of the order of May 10, 1963 under which the payments were made was consented to by the attorneys representing Harvey in that action. The court will consider the affidavit concerning the payments made in 1964, 1965 and 1966.

The substance of Harvey's motion requires an interpretation of N.J.S.A. 54:5--104.34 which provides:

'No action may be instituted under this act on any tax sale certificate unless:

a. More than two years have expired from the date of the tax sale out of which any such certificate...