Brewer v. Porch
| Decision Date | 23 November 1966 |
| Docket Number | No. C--3182,C--3182 |
| Citation | 93 N.J.Super. 66,224 A.2d 697 |
| Parties | George B. BREWER, Sara H. Brewer Downing, Frederick W. BREWER, and Gertrude Bee Brewer, Plaintiffs, v. Alonzo PORCH, Defendant. |
| Court | New Jersey Superior Court |
Bertram R. B. Aitken and David L. Horuvitz, Bridgeton, for plaintiffs.
Herbert H. Butler, Mullica Hill, and Louis B. LeDuc, Camden, for defendant.
This is an action for redemption of a tax sale certificate and a counterclaim to bar the right of redemption. The facts are as follows. Plaintiffs are the surviving heirs-at-law of one Sarah H. Brewer who died intestate June 10, 1948. The said Sarah H. Brewer held legal title to a tract of land consisting of approximately 77 1/2 acres and situate in the Township of Logan, Gloucester County, which land was sold at a tax sale in 1937 and there purchased by the Township of Logan. A tax sale certificate was issued to same.
Defendant, for several years prior to 1937, had leased a number of acres in the tract for farming purposes. Plaintiffs allege that defendant leased all of the lands and that he leased them from Sarah H. Brewer. From the evidence presented it appears that defendant leased only a small portion of the land and that the agreement was with one of the plaintiffs, George B. Brewer, a son of Sarah H. Brewer, though title was in Sarah H. Brewer's name.
After the tax sale in 1937 defendant leased the entire tract from the Logan Township Committee and paid the taxes thereon. The records of the township show that these payments were made by crediting rent owed to Sarah H. Brewer. However, the record seems clear that defendant never entered a lease agreement with Sarah H. Brewer, nor did he lease the lands from George B. Brewer after 1937. This, coupled with the fact that plaintiffs have failed to present any firm proof of such an agreement, leads this court to the conclusion that the notations on the record were due to an erroneous assumption of the entrant.
In 1939 defendant purchased the tax sale certificate from the township and continued to farm the land until 1960, at which time, due to failing health, he abandoned farming and leased the whole tract to a third party for the same purpose. Said third party is not involved in the suit. Defendant paid all taxes on the property up to and including 1964, at which point plaintiffs stepped in and on March 3, 1965 paid to the tax collector of Logan Township $11,916.08, representing the taxes accrued from October 1939 up to and including February 1965, with interest of 6% And less certain deductions. Plaintiffs then demanded that defendant be informed that the tax sale certificate had been redeemed and that he should surrender same to the tax collector. Defendant refused and this suit was instituted.
Defendant counterclaims that, pursuant to N.J.S.A. 54:5--78, plaintiffs' right to redeem has been barred because he had maintained actual possession of the lands under the tax sale certificate for more than 20 years and prays this court to render a decree that the right of redemption is barred. Defendant also raises the defense of adverse possession and laches.
Plaintiffs first argue that N.J.S.A. 54:5--78 is inapplicable to the Private purchaser and that the failure of the Legislature to so limit said section in explicit terms was mere inadvertence, and to support this position they cite the history of N.J.S.A. 54:5--50 which, prior to 1929, stated:
'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 * * *' (L.1918, c. 237, § 34).
In 1929 section 34 was amended by chapter 169, and the provision for immediate possession was removed. N.J.S.A. 54:5--50 is the present version of section 34 and reads:
Plaintiffs contend that the removal of the clause granting the right to possession, coupled with N.J.S.A. 54:5--53.1 which expressly gives said right to a municipality purchasing at a tax sale is an implied repealer of N.J.S.A. 54:5--78 insofar as it gives the right of possession to a private purchaser.
Nor do plaintiffs stand alone in this contention, as witnessed by the numerous cases cited in their brief. In Forster v. Davenport, 128 N.J.Eq. 385, 16 A.2d 614 (Ch.1940), Vice-Chancellor Stein, after a lengthy discussion of section 34 and the amendments thereto on up to the present N.J.S.A. 54:5--50, concluded:
'This provision (right of possession) is no longer part of our statutory law since 1929 and must be deemed to have been repealed by the amendments herein set forth.'
The case of Diamonde v. Berkeley Township, 142 N.J.Eq. 140, 59 A.2d 617 (Ch.1948), the interpretation of N.J.S.A. 54:5--50 in the Forster case, goes so far as to say that an individual who takes possession under a tax sale certificate is a trespasser and liable for the reasonable rental of the premises.
The Supreme Court in Nelson v. Naumowicz, 1 N.J. 300, 63 A.2d (1949), citing Forster, stated that 'the statute did not confer a right of possession upon the individual holder of a tax sale certificate.'
Under ordinary circumstances the above would be dispositive of the case at bar. However, we are in an area where legislation has been the result of piecemeal efforts to deal with specific problems as they arose, Dvorkin v. Dover Township, 29 N.J. 303, 148 A.2d 793 (1959), and where 'the respective rights of the holders of such municipal liens arise solely out of and are fixed and determined by the Tax Act.' Absecon Land Co. v. Keernes, 101 N.J.Eq. 227, 137 A. 429 (E. & A.1927); Nelson v. Naumowicz, Dvorkin v. Dover Township, Forster v. Davenport, all supra.
Defendant has raised several serious questions as to the efficacy of the prior interpretation of N.J.S.A. 54:5--50 which militate against the denial of the right to possession of an individual tax sale certificate holder.
N.J.S.A. 54:5--79 deals with the procedure which must be followed to avoid the voiding of a tax sale certificate:
'The title of a purchaser at a sale shall cease and determine and the certificate of sale shall be void at the expiration of 20 years from the date of the sale, unless the purchaser, His heirs or assigns shall, before the expiration of that term, enter into actual possession of the land purchased, Or foreclose the right to redeem it by notice or by a civil action in the nature of a proceeding in equity and record the evidence thereof, as provided in this chapter; provided, however, that this act shall not apply to titles acquired by a municipality under certificates of tax sales purchased And held by it at tax sales conducted therein which titles so acquired and certificates of tax sales are hereby expressly exempted from said limitation period of 20 years.' (Emphasis added)
It might be noted that the proviso clause of this section is a perfect example of what Justice Burling meant when he referred to the tax act as piecemeal legislation. It is an apparent attempt to correct the situation which occurred in the case of Iorio v. Rothenbach, 38 N.J.Super. 451, 119 A.2d 784 (Ch.Div.1955). In that case the Borough of Emerson's foreclosure of a tax sale certificate in 1943, 24 years after the sale, was declared void. The original amendment had been inserted in 1942, but was held to apply only to certificates whose terms had not expired. The present proviso was added in 1954 and would exempt from the above-mentioned requirements a municipality, such as the Borough of Emerson, which holds the tax sale certificate instead of selling it.
The import of this section is that it ereates an anomaly in the law which should not be allowed to continue. N.J.S.A. 54:5--79 sets forth two methods whereby the purchaser of a tax sale certificate, his heir or assign, can prevent his interest from lapsing. He can either take actual possession within 20 years or foreclose his interest within 20 years in a civil action in Chancery. The interpretation of N.J.S.A. 54:5--50 presently adhered to by the courts of this State effectively cuts off one of these methods by denying to the purchaser, if an individual, or to his heirs or assigns, the right to take possession, and in one case goes so far as to say that such an individual, his heirs or assigns, who seeks to employ this statutorily approved method, will be liable in damages for trespass. Dvorkin v. Dover Township, supra.
Plaintiffs seek to avoid the implications of this section by arguing that it deals only with preserving the right to foreclose and not with foreclosure by continuous possession. But the court in the Forster case did make any such distinction in interpreting N.J.S.A. 54:5--50; rather it gave a blanket denial of a right to possession. Nor does this court feel that such a distinction is warranted.
Plaintiffs are thus left in the awkward position of arguing an implied repeal of the right to possession in N.J.S.A. 54:5--50 in the face of an explicit grant of this right under N.J.S.A. 54:5--79, nor does the proviso clause of N.J.S.A. 54:5--79 resolve the situation, for it exempts only the municipal body which purchases and holds, as in the case of Iorio v. Rothenbach, supra.
It is with a great deal of hesitancy that this court or any court encroaches upon what is believed to be a settled...
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