Burgin v. Rutherford

• Decision Date: 16 November 1897
• Citation: 56 N.J.E. 666,38 A. 854
• Parties: BURGIN v. RUTHERFORD et al.
• Court: New Jersey Court of Chancery

38 A. 854

56 N.J.E. 666

BURGIN

v. RUTHERFORD et al.

Court of Chancery of New Jersey.

Nov. 16, 1897.

(Syllabus by the Court.)

Bill by William M. Burgin, trustee, against John B. Rutherford and others, to foreclose a mortgage. Decree for plaintiff advised.

The complainant in this case, William M. Burgin, trustee, under the will of Charles F. Burgin, deceased, filed his bill to foreclose a mortgage made by James E. Day and wife to Randall E. Morgan, bearing the date October 14, 1886, recorded in the Camden county clerk's office October 23, 1886, on a lot of land in the city of Camden. The only question in controversy arises touching the interest of the defendant Joseph Kaighn in the mortgaged premises. The bill states that on August 27, 1893, J. Willard Morgan, city solicitor of the city of Camden, under the act of March 30, 1886, concerning the settlement and collection of arrearages of taxes, etc., and its supplements and amendments, commonly called the "Martin Act" (3 Gen. St. p. 3370), caused the mortgaged premises to be sold to the defendant Joseph Kaighn for the sum of $40, to satisfy the taxes and assessments, with interest and costs, for the years 1893, 1894. and 1895, with costs, etc. The complainant alleges that Kaighn claims to have a first lien on the premises paramount to and ahead of the complainant's mortgage by virtue of this tax sale. The defendant Kaighn answers the bill, admits the mortgage of the complainant, and admits the tax sale, and his purchase for the taxes assessed on the premises for the year 1893, and remaining unpaid thereon, under the provisions of the Martin act, and claims that by reason of the tax sale, and his purchase for $40, he (Kaighn) is the owner in fee simple of the premises, and has title paramount to and ahead of the complainant and those through whom the complainant claims. The defendant Kaighn further says that the defendant Rourke, who is in possession of the premises, holds the same under his lease, and not otherwise, and he denies that the possession of the defendant Rourke is subject to the complainant's mortgage, and denies that the complainant's mortgage is a prior lien thereto, and alleges that Rourke's title under him (Kaighn) is paramount to and ahead of the complainant's mortgage.

M. V. Bergen, Jr., and M. V. Bergen, for complainant.

S. H. Richards, for defendant Joseph Kaighn.

GREY, V. C. (after stating the facts). Neither the bill nor the proofs raise any question as to the authority of the board having control of the finances of the city to order a sale for the taxes and assessments named in the bill at the time when it is stated to have been made. The validity of the tax sale is not disputed by the pleadings, proofs, or in argument, and I shall consider the case as it has been presented. Upon the hearing it appeared that the mortgaged premises had been sold for taxes under the provisions of the Martin act on August 27, 1896, to the answering defendant, Joseph Kaighn. He was made a defendant upon the averment that he claimed by reason of this purchase to have a first lien on the premises for the amount of the purchase money paid, with interest and costs. Had the defendant answered the bill, setting up his purchase at the tax sale, and claiming that by it he had acquired a lien to the amount of his purchase money, with interest and costs, as provided by the act, which was superior to the mortgage, he would have been entitled either to have been dismissed, allowing his lien to remain upon the premises to be redeemed as provided for in the Martin act, or to have had the amount of his lien ascertained and decreed to be first paid out of the proceeds of sale of the mortgaged premises. The defendant Kaighn admits by his answer that his interest in the premises has been acquired by purchase at a tax sale under the "Act concerning the settlement and collection of arrearages of unpaid taxes," etc., commonly called the "Martin Act" (3 Gen. St. p. 3370), but he avers that by reason of this sale he has become the owner in fee of the mortgaged premises, and has a title superior to the admittedly prior mortgage of the complainant. He makes no allegation that any of the incidents subsequent to the sale, such as notice to owners and mortgagees, expiration of a year after the sale, receipt of a deed, etc., which the act prescribes as prerequisites to the vesting of a fee, have happened. See 3 Gen. St. p. 3384, par. 453, and Id. p. 3374, par. 422. Nor was there any proof that any such circumstances had come to pass, nor could there be, as sufficient time had not elapsed before redemption was effected. The defendant Kaighn insists that this claim shows a legal title adverse to the complainant's mortgage, and that this court has no jurisdiction to pass upon the issue thus raised, and can only dismiss the defendant with costs, etc.

The allegations of the bill and the admissions of the answer, when considered in connection with provisions of the Martin act, under which the defendant purchased, show that he has no title whatever in the mortgaged premises. His right depends entirely upon the provisions of the act, which nowhere gives the purchaser at the tax sale any title until he shall not only have paid the price, but shall have also proved that he has served notice of the sale upon the owners and mortgagees, and that, after the expiration of one year from the time of sale, he has received a deed. When these things have been efficiently done, and not till then, the purchaser at the tax sale takes a "fee simple absolute, free of all encumbrances." 3 Gen. St. p. 3384, par. 453. The mere claim that he has a legal title, when all the facts are admitted, and before the court, which show that he has not, cannot give this defendant a status to challenge the jurisdiction of this court to pass upon his rights in the mortgaged premises. Until this title actually vests by the delivery of the deed, the interest of a purchaser at a tax sale under the Martin act remains a mere lien; the right of redemption is outstanding in the owner and mortgagee. 3 Gen. St. p. 3372, par. 415; Id. p. 3374, par. 422. It is the peculiar province of this court to adjust and enforce the equities attendant upon the redemption of a title from the incumbrance of liens. I have no doubt that such a jurisdiction may be exercised under the general equity powers of this court. But, if there were any question about it, the supplement to the Martin act, approved May 23, 1890 (3 Gen. St. p. 3383, par. 449), in express terms recognizes not only the right of the mortgagee to redeem the lien under the tax sale, but, having redeemed it, to hold and enforce it against the lands "by any appropriate proceeding at law or in equity"; and the steps taken to enforce this redeemed lien "may be independently of and before, or in connection with, proceedings to enforce payment of the mortgage."

It remains to be considered whether the lien under his purchase which ...