Medat v. Mayor

• Decision Date: 04 March 1901
• Citation: 65 N.J.L. 645,48 A. 529
• Parties: MEDAT v. MAYOR, ETC., OF BOROUGH OF RUTHERFORD.
• Court: New Jersey Supreme Court

48 A. 529

65 N.J.L. 645

MEDAT

v. MAYOR, ETC., OF BOROUGH OF RUTHERFORD.

Court of Errors and Appeals of New Jersey.

March 4, 1901.

(Syllabus by the Court.)

Error to circuit court, Bergen county.

Action by Jacob P. Meday against the mayor and council of the borough of Rutherford. Judgment for plaintiff, and defendant brings error. Affirmed.

Copeland, Luce & Kipp, for plaintiff in error.

John M. Bell, for defendant in error.

HENDRICKSON, J. The plaintiff seeks to recover against the defendant municipality damages for the failure of a tax title. At a sale made by the tax collector of the borough of Rutherford, in Bergen county, for the collection of delinquent taxes, the plaintiff became the purchaser of a lot of ground in said borough assessed as the property of the heirs of one Alfred Arnold; he having at said sale agreed to take the same for the term of 30 years, and pay the taxes, with interest and costs, amounting to $27.57. The plaintiff received a certificate of sale from the collector, and entered into possession, and subsequently took a tax deed for said lot from the borough, executed and delivered by its mayor, for the said term of 30 years. The heirs of Arnold afterwards conveyed the lot to one Rose Ryerson, who brought a certiorari removing said tax and the proceedings thereon to the supreme court. The plaintiff, and, as well, the said borough, were made party defendants to said writ; and, after hearing, the said sale, certificate of sale, and deed were vacated and set aside by the court for some defect in the proceedings. The result was that the plaintiff, after a possession of the said lot under the tax title for about six years, was ousted and evicted therefrom by the grantee of the Arnold heirs. The action now brought against the borough is upon contract, for the alleged breach of the covenants of title and for quiet enjoyment. The case was heard in the Bergen circuit by the court—a jury being waived—upon a statement of facts agreed upon. It was admitted that there was no express covenant in the deed, but it was claimed that such covenant is implied by the word "demise," contained in the operative words of the grant, which are "do hereby sell, demise, and convey." The learned judge determined that the defendant was entitled to judgment. The principal grounds of this determination, as stated, were that the word "demise" applies to a covenant only between landlord and tenant, and that there seemed to be no authority in the borough officers to make any covenant as to title. This judgment has been brought here by writ of error for review. The first question, then, is, does the word "demise" import an implied covenant for quiet enjoyment? The contention is that the tax deed is virtually a conveyance for a term of years, and that the word "demise" therein is to have the same construction and effect as it bears when used in a lease of land by the owner. It is true that, when the owner leases his land for a term of years, the word "demise" has the force of an implied covenant for quiet enjoyment,—a force that does not attach to it when used in a conveyance of a freehold estate. 1 Washb. Real Prop. (5th Ed.) p. 518 (star page 325); 3 Washb. Real Prop. (5th Ed.) p. 518 (star page 671); 5 Am. & Eng. Enc. Law, 538. In Phillips v. Mayor, etc., 31 N. J. Law, 143, the supreme court held that when a conveyance of land is executed the purchaser can have no remedy for a failure of title, but such as may be provided for by covenants contained in the conveyance. The late Justice Elmer, in the opinion, deduced this as the true rule of law, after discussing the cases, and added that on the creation of an estate less than freehold a covenant of title is implied from the words of leasing; citing Rawle, Cov. 272. Other cases in this state recognizing this as the correct principle are Gano v. Vanderveer, 34 N. J. Law, 293; Mershon v. Williams, 63 N. J. Law, 398, 44 Atl. 211. The answer to plaintiffs contention is that the relation of landlord and tenant was not created by the tax deed. This instrument does not operate as a "demise" of a term by the owner. It is the execution of a power on the part of the municipality to create an estate in the purchaser for the purpose of realizing the tax. This mode and form of devesting the title of one owner to lands, and creating a title to the same in another, deriving its force and effect from statutory provisions, is recognized in 3 Washb. Real Prop. p. 220 (star page 537). But even if...