Mitsch v. Owens

• Decision Date: 27 December 1913
• Citation: 89 A. 292,82 N.J.Eq. 404
• Parties: MITSCH v. OWENS et al.
• Court: New Jersey Court of Chancery

89 A. 292

82 N.J.Eq. 404

MITSCH

v. OWENS et al.

Court of Chancery of New Jersey.

Dec. 27, 1913.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Application by Charles Mitsch against Edward Owens and others for decree upon bill to foreclose right to redeem land sold for taxes. Decree for strict foreclosure.

Walter A. Barrows, of Mt Holly, for complainant.

WALKER, C. The bill in this cause is filed to foreclose the right to redeem certain lands in the township of Riverside, Burlington county, which were sold for taxes under and pursuant to the provisions of an act entitled "An act for the assessment and collection of taxes." P. L. 1903, p. 394. The section of the act, under which the bill is filed, in terms permits the foreclosure of the "right to redeem," but provides that that right shall continue until barred by "decree of sale," and then goes on to make further provision with reference to the foreclosure of the "right to redeem."

The sole question for determination is whether the decree should be one of strict foreclosure, so called, or for the sale of the property already sold for taxes.

In order to hold that the statute means strict foreclosure, it will be necessary to excise the words "of sale" out of the clause which reads "decree of sale of the court of chancery." This may be done if necessary to give effect to the ascertained intention of the Legislature. I am clearly of opinion that the two prescribed remedies in the statute—that is, foreclosure of the "right to redeem" and "foreclosure sale"—are mutually exclusive of each other, and that one must overrule the other.

The pertinent provisions of the tax act of 1903 (P. L. pp. 431, 432) are portions of sections 57, 59, which read as follows:

"57. The owner, mortgagee, occupant or other person having an interest in the land sold for taxes, may redeem the same at any time within two years from the date of sale, or at any time thereafter until the right to redeem has been cut off in the manner hereinafter set forth, by paying to the purchaser or his legal representative or assigns, the amount of purchase money shown on the certificate with twelve per cent. Interest thereon, together with such other fees and expenses as may be incurred by the purchaser under this act, and the purchaser on receiving such payment, shall restore to the owner said land and the sale shall be void. * * *"

"59. * * * The purchaser or his assigns may in addition to the foregoing remedy at any time after the expiration of the term of two years, whether notice to redeem has been given or not, file a bill in equity to foreclose the right of redemption, but on filing such bill the right to redeem shall exist and continue until barred by the decree of sale of the court of chancery; the title by a purchaser at a tax sale * * * shall be void at the expiration of twenty years from the date of the tax sale unless the purchaser shall before the expiration of that term enter into actual possession of the land purchased or foreclose the right to redeem the same by notice or by proceedings in equity and record the evidence thereof as above prescribed."

The word "redeem" means "repurchase." Pace v. Bartles, 47 N.J.Eq. 170, 20 Atl. 352. It is perfectly apparent that a repurchase of land sold for taxes can be made only by the owner or other person having an interest in the land, and not by a mere stranger at a judicial sale. It is true that the interest of the purchaser of land at a tax sale remains a mere lien on the premises during the period within which redemption is allowed to be effected (Burgin v. Rutherford, 56 N.J.Eq. 666, 38 Atl. 854), and it is the foreclosure of the right to redeem by which the owners' estate is cut off and extinguished and the purchaser's lien becomes an indefeasible estate in him.

In Frazier v. Johnson, 65 N.J.Law, 673, 675, 48 Atl. 573, the right to redeem from the purchaser of a tax title is considered, and reference is made to the "important right of redemption." It will be seen that what may be foreclosed under the tax act, if effect is to be given to the expression "foreclose the right to redeem," is that very right itself—the right to redeem—nothing more and nothing less. In Cadmus v. Bayonne, 61 N.J.Law, 494, 39 Atl. 678, it was held that the right to redeem is the right of the owner, and that its form is strictly prescribed. If, however, a sale were had on a bill to foreclose the right to redeem, redemption, in effect, might be made by one of the public—a mere stranger to the title. In my judgment the law does not intend to make provision that a total stranger may deprive the purchaser at a tax sale of his right to perfect his title, by strict foreclosure, on the one hand, or usurp the owner's right to redeem, by permitting the land to be bought away from him, on the other hand.

Section 57 of the act provides that redemption may be made by payment by the owner to the purchaser, and section 59 that the right to redeem may be foreclosed. If foreclosure means the foreclosure Of the right to redeem, the provisions are harmonious. If it means another sale of the land already sold for taxes, they are inharmonious; permitting the owner to redeem by reimbursing the holder of the tax title in the one case, and in the other permitting a stranger to purchase the property away from both.

Originally all foreclosures were of the strict kind; that is, the decree foreclosed the equity of redemption of the mortgagor after default in payment, and the lands thereupon became the absolute property of the mortgagee. The sale of mortgaged premises, on foreclosure, was a doctrine invented by courts of equity in order to do justice to both mortgagor and...