Mitsch v. Riverside Tp.

• Decision Date: 16 November 1914
• Parties: MITSCH et al. v. RIVERSIDE TP. et al.
• Court: New Jersey Supreme Court

92 A. 436

86 N.J.L. 603

MITSCH et al.

v. RIVERSIDE TP. et al.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1914.

(Syllabus by the Court.)

Appeal from Supreme Court.

Certiorari by Charles Mitsch and others against the Township of Riverside and another. From judgment for defendants, plaintiffs appeal. Reversed, and record remitted to Supreme Court.

The respondent Scheie brought ejectment against the appellants, claiming under a tax sale. Thereupon the appellants sued out a certiorari in aid of their defense for the purpose of setting aside the tax sale. The property formerly belonged to Barrows, who conveyed to Mitsch by deed dated May 28, 1904, and recorded May 31, 1904. Mitsch had taken possession of the land and built an office and scales thereon, which were used in connection with and as part of a lumber yard. On December 12, 1908, there was recorded a deed for the same property from Barrows to Schuster, dated and acknowledged August 18, 1894. (The date 1904 as given in the certified copy is clear copyist's error.) Mitsch had been regularly assessed for taxes on property described as "lumber yard," which was supposed by him and by the assessor and collector to include the lots now in question. In 1908 after the assessor had completed the duplicate and it had reached the collector, the latter officer was asked by some one to assess the lots. He did so, assessing them in the name of Schuster. Of this Mitsch had no notice, but paid his taxes on the "lumber yard" as before. The taxes assessed to Schuster were unpaid, and a tax sale was had in 1909 for the Schuster faxes. Under this sale Scheie claims. Mitsch had no notice of the sale. In 1911 he was notified by Scheie to redeem. He employed Barrows as his attorney. Barrows sent Scheie a check for the tax (which was less than $10 including interest and costs). Scheie refused to receive it. Thereupon Barrows sent a check to the collector, who refused to receive it upon the ground that Mitsch was a stranger and had no right to redeem. No other ground was stated. The collector wrote that Schuster was considered the rightful owner. He evidently thought that Schuster alone had the right to redeem. Who Schuster was did not appear. It was proved by Barrows, who was uncontradicted, that the deed under which Schuster is supposed to claim had been executed by him. probably in blank, and put in the hands of one Rhoads, who said he had a prospective buyer; that afterwards Rhoads informed Barrows that the man had failed to take the deed, which was then lost.

V. Claude Palmer, of Mt. Holly, for appellants.

James M. Davis, of Camden (Davis & Davis, of Camden), for respondents.

SWAYZE, J. (after stating the facts as above). If it were necessary we could not avoid holding upon the case as presented that there was no proof that the deed to Schuster had ever been legally delivered. It is not necessary to go as far as that. Assuming in favor of the respondents that it was delivered, the failure to record it until after Mitsch had recorded his deed is fatal to the alleged Schuster title. There is no question that Mitsch was a bona fide purchaser for a valuable consideration not having notice thereof. As to him the statute makes the Schuster deed void and of no effect. 2 Comp. St. 1910, p. 1553, pl. 54. The law was not different in 1894. 1 Gen. St 1895, p. 885, pl. 164; page 882, pl. 145. There can be no question that Mitsch's deed conveys the lots; the boundaries as stated therein plainly cover them; the fact is confirmed by the testimony of the grantor and of the surveyor, and was in effect acknowledged by Scheie when he served a notice calling upon Mitsch to redeem. The fact that Mitsch's deed included the lots was not disputed; the controversy was only whether they were included in the assessment of the "lumber yard" by those words alone. This was an immaterial issue, since the proceedings are otherwise fatally defective.

"The power to sell lands for taxes is a naked power, and the validity of the title derived from such a sale depends upon a strict compliance with the directions of the statute. The onus probandi is upon the purchaser at such a sale, and he must show affirmatively that everything had been done which the statute makes essential to the due execution of the power." Woodbridge v. State (Allen, Pros.), 43 N. J. Law, 262. The first and most important essential is a valid assessment. Without that, all the proceedings are a mere nullity Under our statute one of the requisites of a valid assessment is notice of some kind to the owner. The collector is required by section 42 of the Tax Act within 60 days after the receipt of the tax duplicate to demand payment of the tax from each taxpayer in person or by notice left at his residence or mailed postage prepaid to the taxpayer if his post office address is known to the collector. Although this section of the statute provides that no proceedings for collection shall be invalid for lack of the notice or demand, it is obvious that this saving clause was meant only to prevent the failure of a tax lien in cases where the collector could not readily make the demand. In a case like the present, where it is shown that the owner was well known to him, lived in the same town, and was supposed at least to have been already assessed and to have paid taxes on the property regularly for three years immediately preceding, there can be no excuse for the failure to give notice and demand payment of the tax as the statute requires, except the fact that, as is now said, the property was not included by the assessor in the assessment of the "lumber yard." This, however, does not excuse the collector. He himself undertook to assess the lots as omitted property under the authority given to him by section 28 of the Tax Act. 4 Comp. St. 1910, p. 5107, pl. 28. That section requires him to give the owner immediate notice of the entry of the assessment on the duplicate and of the time and place of the next meeting of the commissioners of appeal. There is no saving clause in this section as in section 42, and the decisions do not suggest a qualification of the necessity of notice, except in the case of nonresidents, where actual service is impossible. The decisions, it is true, were not in cases of omitted property added by the collector under section 1 of the act of 1848 (3 Gen. St. 1...