Brewer v. Porch

• Decision Date: 20 January 1969
• Docket Number: No. A--32,A--32
• Parties: George B. BREWER, Sara H. Brewer Downing, Frederick W. Brewer and Gertrude Bee Brewer, Plaintiffs-Appellants, v. Alonzo PORCH, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 167

53 N.J. 167

249 A.2d 388

George B. BREWER, Sara H. Brewer Downing, Frederick W Brewer and Gertrude Bee Brewer, Plaintiffs-Appellants, v. Alonzo PORCH, Defendant-Respondent.

No. A--32.

Supreme Court of New Jersey.

Argued Nov. 4, 1968.

Decided Jan. 20, 1969.

Gerald W. Conway, Newark, for appellants (Schreiber & Lancaster, Newark, and David L. Horuvitz, Bridgeton, attorneys).

Louis B. LeDuc, Camden, for respondent (Herbert H. Butler, Mullica Hill, and Louis B. LeDuc, Camden, attorneys).

The opinion of the court was delivered by

HANEMAN, J.

The Chancery Division found that defendant had good title to certain realty and that plaintiffs had no right to redeem the land from a tax sale certificate or to other relief incidental thereto. 93 N.J.Super. 66, 224 A.2d 697 (Ch.Div.1966). The Appellate Division affirmed the judgment 98 N.J.Super. 583, 238 A.2d 193 (App.Div.1968) and this Court granted plaintiffs' petition for certification. 51 N.J. 464, 242 A.2d 13 (1968).

In 1927, George B. Brewer, one of the plaintiffs, had title to the land in question, some 77 acres in Logan Township. In that year he conveyed to his mother, Sara H. Brewer, who died intestate on June 10, 1948. The plaintiffs in this action are her heirs. Although out of title, George Brewer leased a small portion of the property to defendant, who farmed the same during 1936 and 1937. On August 7, 1937, the Tax Collector of Logan Township sold the land for nonpayment of taxes. There being no other purchaser, it was struck off and sold to the Township. In 1938 defendant leased the entire tract from the Township for approximately two years. In 1939 the Township sold and assigned the tax sale certificate to him upon his payment of the full amount of taxes, interest and costs then due the municipality. Defendant immediately entered into possession of practically all of the lands. He farmed practically the entire tract until 1960 when ill health forced him to discontinue his agricultural activites. Since 1961 he has leased the farm to Gordon Hurff who has continued to farm 'all of it.' Defendant took no action by way of notice under N.J.S.A. 54:5--77 et seq., or by way of action in the Chancery Division of the Superior Court, under N.J.S.A. 54:5--85 et seq., to foreclose plaintiffs' right of redemption.

On March 3, 1965, plaintiffs paid the Tax Collector of Logan Township, the amount required to redeem the lands from the above-mentioned tax sale. (N.J.S.A. 54:5--54) Defendant refused to accept the money so paid and to surrender the tax sale certificate. Plaintiffs then filed suit, demanding the cancellation of the tax sale certificate, recovery of the value of defendant's use of the land since 1938 and an accounting of the rents received by defendant therefrom. Defendant answered that the right of redemption was terminated and that he had obtained fee title by his entry into open possession under the sale, which possession continued for upwards of 20 years without redemption by plaintiffs. See N.J.S.A. 54:5--78. He therefore demanded judgment declaring that he had good title and that plaintiffs had no right of redemption. The trial court found for defendant and judgment was entered accordingly. The Appellate Division affirmed, as noted above.

Plaintiffs argue that the holder of a tax sale certificate cannot, by possession under the certificate, cut off a fee owner's right to redeem. Although plaintiffs admit that the tax sale law at the time of the sale (L.1918, c. 237, § 47) contained, and presently (N.J.S.A. 54:5--78) contains, a provision barring redemption where there has been 'no redemption within twenty years after the purchaser has entered into open possession, since continued, under the sale,' they argue that this provision was implicitly repealed when L.1929, c. 169 deleted from § 34 of L.1918, c. 237 (the predecessor of N.J.S.A. 54:5--50) the express grant of a right to possession to the holder of a recorded tax sale certificate. The pivotal question is whether L.1929, c. 169 did implicitly repeal that portion of L.1918, c. 237, § 47 (N.J.S.A. 54:5--78) which provided for the barring of an owner's right of redemption by 20 years open and continuous possession of the lands under the tax sale certificate. The answer lies in an ascertainment of the legislative intent in adopting L.1929, c. 169.

At the outset it must be recognized that 'municipal liens, and the rights arising therefrom, are solely statutory in origin and are fixed and determined by the statute.' Dvorkin v. Dover Tp., 29 N.J. 303, 319, 148 A.2d 793, 802 (1959). See also Nelson v. Naumowicz, 1 N.J. 300, 63 A.2d 269 (1949); Absecon Land Co. v. Keernes, 101 N.J.Eq. 227, 137 A. 429 (E. & A. 1927); Raritan Tp. v. Rotante, 92 N.J.Super. 319, 223 A.2d 286 (Ch.Div.1966).

It must also be recognized that, in seeking to ascertain the legislative intent, it is essential that certain cardinal principles of statutory construction be kept in mind.

The first of these is that, ordinarily, implied repealers are not favored in the law. Swede v. City of Clifton, 22 N.J. 303, 125 A.2d 865 (1956); Goff v. Hunt, 6 N.J. 600, 80 A.2d 104 (1951); Loboda v. Clark Tp., 40 N.J. 424, 193 A.2d 97 (1963). However, when a later expression of legislative will is so clearly in conflict with an earlier statute on the same subject that the two cannot reasonably stand together, each in its own particular field, the courts will find a legislative intent to supersede the earlier law. The test is whether the two statutes are inconsistent or repugnant. Swede v. City of Clifton, supra; Montclair v. Stanoyevich, 6 N.J. 479, 79 A.2d 288 (1951); Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 223, 160 A.2d 265 (1960); Dept. of Labor v. Cruz, 45 N.J. 372, 212 A.2d 545 (1965).

Another principle is that, in seeking to discover the legislative intent, the statute must be read in the light of the old law, the mischief sought to be eliminated and the proposed remedy, Key Agency v. Continental Cas. Co., 31 N.J. 98, 103, 155 A.2d 547 (1959); San-Lan Builders, Inc. v. Baxendale, 28 N.J. 148, 145 A.2d 457 (1958), and to that end reference may be had to its history and purpose, State v. Brown, 22 N.J. 405, 126 A.2d 161 (1956). In order to ascertain the purpose, the preamble and statements attached to the bill which was enacted into the statute may be considered. Bass v. Allen Home Improvement Co., 8 N.J. 219, 84 A.2d 720 (1951). Acts in Pari materia as well as related acts not strictly in Pari materia, should be examined. Appeal of N.Y. State Realty & Terminal Co., 21 N.J. 90, 121 A.2d 21 (1956); State v. Brown, supra; Key Agency v. Continental Cas. Co., supra.

Yet another principle is the assumption that the Legislature is thoroughly conversant with its own legislation and the judicial construction of its statutes. Matawan Borough v. Monmouth Cty. Tax Bd., 51 N.J. 291, 240 A.2d 8 (1968); State v. Federanko, 26 N.J. 119, 139 A.2d 30 (1958); City of Newark v. Rockford Furniture Co., 4 N.J.Super. 205, 66 A.2d 743 (App.Div.1949).

Where there are two contradictory provisions in a statute, the primary object is to ascertain the legislative design with reasonable certainty, and where the two, separated in point of time of enactment so that the earlier section was by implication repealed by the latter, are embodied in a revision of general laws, the re-enactment of the former is deemed an oversight and ineffective. Hackensack Water Co. v. Division of Tax Appeals, 2 N.J. 157, 65 A.2d 828 (1949).

We turn now, to the statute in question and related acts:

In 1918, when the Tax Sale Revision, L.1918, c. 237 (designated 'tax sale law' in the revision of 1937, N.J.S.A. 54:5--1), was adopted, it contained the following provisions '34. The purchaser may record the certificate of sale in the office of the clerk or register of the county where the land lies as a mortgage of land, and Thereupon shall be entitled to the immediate possession of the property sold and described in the certificate, and to all the rents and profits thereof from and after the date of record until redemption.' (Emphasis supplied) (Now N.J.S.A. 54:5--50)

'47. If there shall be no redemption within the said term limited by the notice provided in the preceding section; or If there shall be no redemption within twenty years after the purchaser has entered into open possession, since continued, under the sale; then in either case, the right of redemption shall be barred.' (Emphasis supplied) (L.1918, c. 237.)

As far as here relevant, § 47 has continued in essentially the same form from 1918 to date. See N.J.S.A. 54:5--78. By L.1926, c. 81, the Legislature amended L.1918, c. 237, § 34 by adding:

'* * * Provided, however, that purchaser at tax sale of a dwelling house occupied by the delinquent owner shall not be entitled to collect rents for such part of the dwelling house as shall be occupied by the delinquent or his immediate family until after the expiration of two years from the date of record of the certificate of sale'. (L.1926, c. 81)

In 1929, a further amendment to § 34 caused it to read, as far as here pertinent, as follows:

'The purchaser may record the certificate of sale in the office of the clerk or register of the county where the land lies as a mortgage of land. * * *' (L.1929, c. 169)

Appended to the 1929 bill was a Statement which reads: 'The purpose of this act is To force the foreclosure of tax liens by eliminating the right of purchasers to collect rents from the properties so purchased by them.' (Emphasis supplied) It is to be noted, that so much of the statute as read 'and thereupon shall be entitled to the Immediate possession of the property sold and described in the certificate, and all the rents and profits thereof from and after the date of record until redemption' (emphasis supplied) was excised by this amendatory act.

In 1933, the Legislature passed the 'Stout Act', L.1933, Special Session, c. 6; R.S.App. A:4--1 et...