Harrington Co. v. Chopke

• Decision Date: 16 May 1932
• Docket Number: No. 89.,89.
• Citation: 160 A. 335
• Parties: HARRINGTON CO. v. CHOPKE.
• Court: New Jersey Supreme Court

160 A. 335

HARRINGTON CO.

v. CHOPKE.

No. 89.

Court of Errors and Appeals of New Jersey.

May 16, 1932.

Syllabus by the Court.+++

1. Section 49, P. L. 1929, p. 241, P. L. 1928, p. 382 (Comp. St. Supp. § 208—444a(52), being amendments of the revised Tax Sale Act, P. L. 1918, pp. 883, 897, is not retroactive, citing Wittes v. Repko, 107 N. J. Eq. 132, 151 A. 850.

2. The right to redeem from sales for unpaid taxes is controlled by the laws in force at the time of the tax sale, citing Harrington v. Jones, 104 N. J. Eq. 377, 145 A. 869, affirmed 106 N. J. Eq. 280, 151 A. 906; Wittes v. Repko, 105 N. J. Eq. 241, 147 A. 498, affirmed 107 N. J. Eq. 132, 151 A. 850.

Appeal from Court of Chancery.

Suit by the Harrington Company against John Chopke, sometimes known as John Chopko. From the decree rendered [108 N. J. Eq. 297, 154 A. 849], the complainant appeals.

Affirmed.

Adolf L. Engelke, of Jersey City, for appellant.

Amos M. Wain, of Trenton, for respondent.

CAMPBELL, J.

The bill of complaint in this cause was filed for the strict foreclosure of two tax liens held by the complainant against the lands of the defendant, lying in the county of Mercer, the proceeding being taken under an act entitled "An Act concerning unpaid taxes, assessments and other municipal charges on real property, and providing for the collection thereof by the creation and enforcement of liens thereon." Revision of 1918, P. L. 1918, p. 883, and the supplements and amendments thereto, Comp. St. Supp. § 208—444a (1) et seq.

The complainant twice purchased the lands of the defendant, the first time on September 9, 1926, and the second time on September 9, 1927, being respectively for the unpaid taxes for the years 1925 and 1926. The amount of the purchase in 1926 was $13.03, and that in 1927 was $16.72.

The bill of complaint was filed July 20, 1929; subpoenas were tested as of August 9, and served upon the defendant August 14, 1929. On August 1, 1929, notice of the filing of the bill was lodged with the receiver of taxes of the taxing district in which the lands are situated, and on July 23, 1929, a lis pendens was filed in the office of the clerk of Mercer county.

It appears that the first notice that respondent had that the appellant had any interest in his lands was through a letter from its solicitor under date of July 19, 1929, which, in fact, did not disclose such interest, but was merely an inquiry as to whether respondent was the party who purchased lands "on the northeasterly corner of Paul Avenue and Nassau Street In Trenton, this State, from Mary M. Sholtis, on February 10, 1922." Inclosed with such letter was a short questionnaire which respondent was requested to answer and return. This letter was answered by the attorney for respondent on July 24, 1929, to the effect that the object of the inquiry was not understood, and requesting information as to the use to be made of the information called for. This was answered by a letter from the solicitor of the appellant to the attorney of the respondent under date of July 25, 1929, which advised that the proceeding in question had been commenced to foreclose a tax lien on the lands of the respondent; that the purpose of the previous letter was to locate the present owner of the lands so that he could be notified of the pendency of such suit, and inquired of the attorney for respondent if he was in a position to acknowledge service for him and his wife, and, if not, subpoenas and tickets would be forwarded to the sheriff of Mercer county for service.

This appears to have brought a telephone message from the attorney of respondent to the solicitor of the appellant, which the latter answered by letter of July 29, 1929, showing the total amount claimed to be due from respondent as $273.07.

This was made up as follows:

Taxes 1925

$39.73

Taxes 1926

43.08

Court costs approximated

New Jersey Supreme Court & U. S. District Court searches

10.20

City tax search

2.00

Title search

80.00

Counsel fee

75.00

$273.07

The letter further advised that, upon receipt of this amount, the two certificates of sale which were the basis of the proceeding indorsed for cancellation, a discharge of the lis pendens, and a consent to the dismissal of the foreclosure proceeding would be forwarded to the attorney of the respondent. The letter also stated that the city tax search which had been procured in the matter disclosed that the 1925 and 1926 taxes "had been sold to an individual" (being appellant, although not naming it as such purchaser) at 8 per cent. interest, and that the 1927 taxes "were sold to the City" at 7 per cent., and that the taxes for 1928 and 1929 were unpaid and delinquent, and that there was a lien for street improvement assessed June 21, 1929, and that further proceedings would be withheld until August 5th.

Respondent, by his attorney, appears to have made inquiry of the receiver of taxes as to the amounts due appellant, and was informed that the amount due for the sale for taxes of 1925 was $13.03 and interest at 8 per cent. from September 9, 1926, and for the taxes of 1926, $16.72 and interest at 8 per cent. from September 9, 1927, together with a search fee of $10 on each sale.

On August 2, 1929, respondent, by his attorney, went to the receiver of taxes for the purpose of making redemption by the payment of the amount due, and was advised by that officer that he could not receive the money and bring about a redemption, because notice of the filing of the bill to foreclose had been served upon him the previous day, August 1st.

On August 15, 1929, a tender, in behalf of the respondent, was made to the solicitor of the appellant of the sum of $102.88, and was refused.

On August 24, 1929, another tender of $113.10 was made and refused, and on September 3, 1929, the sum of $116.76 was paid into court and received by the clerk.

On August 8, 1929, a notice was given of a motion to strike out the bill of complaint. This motion was denied August 22, 1929.

On August 12, 1929, a petition by the respondent was filed, having been served August 8, praying that the amount necessary to be paid to redeem his lands be fixed and ascertained. This apparently came on before an advisory master, and was denied August 16, 1929.

On September 4, 1929, respondent filed an answer and an answer in lieu of a plea.

A motion was made to strike out these pleadings, and on October 7, 1929, such motion was continued to October 21, 1929, and the matter referred to a master to ascertain and report, on or before October 17, 1929, the amounts due the appellant.

The master reported that there was due appellant for the taxes of 1925 the sum of $28.24, and for the taxes of 1926 the sum of $30.84, making a total sum due of $59.08.

The matter seems to have remained dormant from the time of the master's report, October 17, 1929, until April 6, 1931, when upon, and by, notice from counsel of respondent, the matter was noticed to be brought on before a Vice Chancellor on April 20, 1931, to fix and determine the amount to be paid by the respondent to redeem his lands from the sales...