Hardy v. Johnson, C--1870

• Decision Date: 17 March 1951
• Docket Number: No. C--1870,C--1870
• Citation: 12 N.J.Super. 268,79 A.2d 500
• Parties: HARDY et al. v. JOHNSON et al.
• Court: New Jersey Superior Court

Page 268

12 N.J.Super. 268

79 A.2d 500

HARDY et al. v. JOHNSON et al.

No. C--1870.

Superior Court of New Jersey, Chancery Division,

Morris County.

March 17, 1951.

Vito A. Concilio, Newton, for plaintiffs.

Sholem Lipis, Newark, for defendants.

STANTON, J.S.C.

This is an action for the specific performance of a contract for the sale of unimproved lands. Defendants refused to take title on the ground that plaintiffs did not have a marketable title, and counterclaimed for the return of the deposit made on the contract and the expense of examining title. The case has been submitted on a stipulation of facts and written argument.

The sole issue in the pretrial order is whether or not there was an extinguishment of the tax lien which was acquired by Isaac R. Halliday, and his wife. Halliday acquired under the will of his mother, who died on December 27, 1925, seized of an undivided one-fourth interest in the premises, an estate in remainder in an undivided one-twelfth part thereof; such estate being subject to the life estate of his sister, Caroline E. Bailey. On September 17, 1928, the lands in question were sold for taxes to one Harold Estler who, on December 11, 1928, assigned the tax sale certificate to Halliday. All municipal liens subsequent to the said tax sale have been paid. On December 6, 1940, notice to redeem was sent by registered mail to all persons having an interest in said lands; in the written notice by Halliday it was stated that there was due on the tax sale certificate as of December 2, 1940, the sum of $130.79, and the further sum of $681.91 which was the amount of taxes with interest thereon paid by him for the years 1927 to 1940 inclusive; and it was further stated that if the said lands were not redeemed within 90 days, Halliday would file a bill of complaint in the Court of Chancery to foreclose the addressees' right of redemption. On May 13, 1941, Halliday instituted a foreclosure suit in the Court of Chancery against all persons having an interest in the premises. The defendants therein were duly served but none appeared or answered and final decree was entered on January 23, 1942.

In Roll v. Everett, 73 N.J.Eq. 697, 71 A. 263 (E. & A. 1908), a bill was filed for partition and the defense was that complainants' interest in the premises had been cut off by defendants' acquisition of a paramount title under a tax deed. At page 701 of 73 N.J.Eq., on page 264 of 71 A., the court stated 'The law is well settled that where one tenant in common acquires a tax title or redeems land from a tax sale, his act inures to the benefit of his co-tenant upon their reimbursing him for their proportionate share of the amount paid by him. The principle is in some of the cases put upon the ground of a confidential relationship between the tenants in common. 1 Lead.Cas.Eq. (4th Am. ed.) 68. Other cases rest the doctrine upon the principle that one cannot be allowed to acquire a right by his own default. This principle would be violated if a tenant in common, who is equally obligated to pay all the taxes upon the joint property, were allowed to acquire rights superior to his co-tenant by defaulting in his obligation, and forcing the public authorities to take proceedings for the collection of the tax. Other cases seem to rest the doctrine upon the view that one who has title to land cannot acquire a superior title by means of a tax deed. In the view of these cases, the acquisition of the tax title amounts to nothing more than a...