Harrington Co. v. Horster

• Decision Date: 06 August 1918
• Citation: 108 A. 150
• Parties: HARRINGTON CO. v. HORSTER et al.
• Court: New Jersey Court of Chancery

108 A. 150

HARRINGTON CO.

v. HORSTER et al.

Court of Chancery of New Jersey.

Aug. 6, 1918.

Bill by the Harrington Company, against Otto G. Horster and others. Decree for respondents in accordance with the opinion.

Adolph L. Engelke, of Jersey City, for complainant.

Otto A. Stiefel, of Newark, for defendants.

LEWIS, V. C. The bill in this cause is filed for the strict foreclosure of a certificate of tax sale made by the collector of taxes of the city of East Orange to one I. Baldauf, and assigned by the purchaser to complainant.

The authority for the filing of the bill of complaint is to be found in a case decided by the present chancellor. Mitsch v. Owens, 82 N. J. Eq. 404, 89 Atl. 292. The certificate, which has been admitted in evidence, and the testimony taken, show that the land in question, formerly belonging to the defendants Otto G. Horster and wife, was struck off and sold to I. Baldauf under proceedings taken by Louis McCloud, collector of taxes of the city of East Orange, to enforce the collection of delinquent taxes assessed for the year 1912. There is no denial that the taxes were unpaid, or that the taxes were regularly assessed and collectible by the city collector.

Taxes being due the City of East Orange, it became the duty of the collector to insist upon their collection. The revision of the tax law adopted in the year 1903 provided the method for the enforcement of the rights of the city of East Orange, and pointed out the methods to be adopted by the collector of taxes.

The defendants contend that the complainant has not proved its right to foreclose the certificate of tax sale, basing their contention upon grounds directed merely to the execution and acknowledgment of the certificate of tax sale; the defendants insisting that the court should set aside the tax sale certificate, which would mean that the complainant would then be entitled to have returned to it from the city of East Orange the amount paid on tax sale, plus 6 per cent. interest. See 4 Comp. Stat. p. 5138, § 00:

"Where the tax sale shall be set aside because of defective proceedings on the part of its officers, the taxing district shall refund to the purchaser the price paid by him on the sale with simple interest, upon his assigning to the tax district the certificate of sale and all his interest in the tax and tax lien, and the taxing district may readvertise and sell if the tax lien remains in force."

The tax sale certificate is not attacked until the testimonium clause is reached. That reads as follows:

"In witness whereof, I, Louis McCloud, collector of taxes of the city of East Orange, have hereunto set my hand, and I, Lincoln E. Rowley, city clerk of said city of East Orange, have hereunto affixed the corporate seal of the said city, and attested the same this twenty-third day of October, in the year one thousand and nine hundred and thirteen.

"Louis McCloud, Collector of Taxes.

"[Seal of the City of East Orange.] "Attest: Lincoln E. Rowley, City Clerk."

Proof was then made by the city clerk as follows:

"State of New Jersey, County of Essex—ss.:

"Be it remembered, that on this twenty-third day of October, in the year of our Lord one thousand nine hundred and thirteen, before me, a master in chancery of New Jersey, personally appeared Lincoln E. Rowley, who, being duly sworn according to law, on his oath says that he is the city clerk of the city of East Orange; that Louis McCloud is the collector of taxes of said city; that he (deponent) knows the corporate seal of said city; that the seal affixed to the foregoing deed is such corporate seal; that he saw the said Louis McCloud sign said deed and heard him acknowledge that he signed, sealed, and delivered the same as his voluntary act and deed for the uses and purposes therein expressed; and that deponent at the same time affixed the corporate seal of said city thereto and attested the same.

"Lincoln E. Rowley.

"Sworn and subscribed to before me this 23d day of October, A. D. 1913, at East Orange, N. J.

"Borden D. Whiting, M. C. C. of N. J."

Section 52 of the revision of the tax laws adopted in the year 1903 (P. L. p. 428) says:

"Within ten days after the sale, the collector shall deliver to the purchaser a certificate of sale under his hand and seal and duly acknowledged by him as a conveyance of land," etc.

The question to be decided is simply whether the collector of taxes has complied with the statute, which requires that the certificate of sale shall be delivered under his hand and seal. It will be observed that the collector of taxes uses the words "have hereunto set my...