Preparatory Temple & House of Prayer for All People, Inc. v. Seery

• Decision Date: 25 November 1963
• Citation: 195 A.2d 900,81 N.J.Super. 429
• Parties: The PREPARATORY TEMPLE AND HOUSE OF PRAYER FOR ALL PEOPLE, INC., a corporation of New Jersey, Plaintiff, v. John W. SEERY, Helen M. Seery, his wife, Robert A. Zigler, Mary J. Zigler, his wife, Charles D. Pryor and Beulah Pryor, his wife, William Small and Lucille Small, Earlie Hoskins, Russell Coleman and Vencie Lee, Defendants. CIV. A.C. 317--62.
• Court: New Jersey Superior Court

Page 429

81 N.J.Super. 429

195 A.2d 900

The PREPARATORY TEMPLE AND HOUSE OF PRAYER FOR ALL PEOPLE INC., a corporation of New Jersey, Plaintiff, v. John W. SEERY, Helen M. Seery, his wife, Robert A. Zigler Mary J. Zigler, his wife, Charles D. Pryor and Beulah Pryor his wife, William Small and Lucille Small, Earlie Hoskins Russell Coleman and Vencie Lee, Defendants.

CIV. A.C. 317--62.

Superior Court of New Jersey Chancery Division.

Nov. 25, 1963.

Clarence Blitz, Atlantic City, for plaintiff.

Joseph E. Robertson, Atlantic City, for defendants John W. Seery and Helen M. Seery, his wife.

John R. Armstrong, Atlantic City, for defendants Charles D. Pryor, William Small and Russell Coleman et ux. (Kirkman, Mulligan, Bell & Armstrong, Atlantic City, attorneys).

Herman J. Finn, Atlantic City, for defendant Earlie Hoskins (Finn & Rimm, Atlantic City, attorneys).

WICK, J.S.C.

This proceeding is an action for declaratory judgment wherein plaintiff landowner seeks to set aside an In rem tax foreclosure of his property by a township, claiming that the foreclosure was irregular and defective. The complaint was originally filed in the Law Division on March 23, 1961. It was not until August 27, 1962 that the cause was transferred to the Chancery Division.

The facts are not in dispute. Virginia Davis, a widow, conveyed to plaintiff by deed dated August 21, 1956, recorded in the office of the Clerk of Atlantic County in Book 1819 of Deeds, page 125, the following lands situate in Egg Harbor Township, Atlantic County, New Jersey: Lots 1 to 12, inclusive; Lots 25, 26, 29 to 34, inclusive; Lots 43 to 47, inclusive; and Lots 67 to 81, inclusive, as shown on the map of Douglas Park, made in April 1913 by Raymond P. Thompson, C.E., filed in the Atlantic County Clerk's Office, No. 912. Thereafter, on August 21, 1957 the Township of Egg Harber purported to foreclose certain of these lots by an In rem tax foreclosure proceeding. Judgment was entered thereon on October 16, 1957 and recorded in the Clerk's Office of Atlantic County on October 21, 1957, in Book 1879, page 116. The lands in question were sold by the Township of Egg Harbor to defendant John M. Seery on December 3, 1957. Seery, in turn, sold various portions of these lands to defendants Robert A. Zigler and his wife Mary J. Zigler, Charles D. Pryor and his wife Beulah Pryor, William Small and his wife Lucille Small, Earlie Hoskins, Russell Coleman and Vencie Lee.

The plaintiff filed the instant complaint to set aside the In rem tax foreclosure on March 23, 1961. It is alleged that the named defendants do not have good title to their lands and that plaintiff's title thereto is superior to that of defendants for the singular reason that the original complaint filed to institute the In rem tax foreclosure action was not verified as required by R.R. 4:82--7(a). The Plaintiff contends that the lack of a verified complaint infected the Bona fides of the foreclosure proceeding and is of such a consequence as calls for vacating and setting aside the In rem tax foreclosure judgment, thereby destroying the validity of defendants' titles. In all other respects, the foreclosure proceeding appears to have been correct, no other allegation of impropriety being made thereon.

The In Rem Tax Foreclosure Act (N.J.S.A. 54:5--104.29 et seq.) provides that 'The Superior Court shall have jurisdiction to give full relief, in rem, as prescribed in this act.' N.J.S.A. 54:5--104.36. Pursuant to this authority, the Supreme Court promulgated a rule requiring that an In rem tax foreclosure complaint be verified by the tax collector. R.R. 4:82--7(a).

In the enforcement of statutes and rules, procedural or clerical errors not affecting the jurisdiction of a court, nor amounting to a lack of constitutional due process, may not be the basis for upsetting and declaring invalid an In rem tax foreclosure judgment. In the case of Lakewood Tp. v. Block 251, Parcel 34, 48 N.J.Super. 581, 138 A.2d 768 (App.Div.1958), defendant purchaser of a parcel of land contended that a foreclosure proceeding should be set aside for the following reasons: (1) the tax sale certificate number was not included in the tax foreclosure list, as required by N.J.S.A. 54:5--104.35(c); (2) the affidavit of posting of notice failed to indicate that the notices were posted in three conspicuous places, as required by R.R. 4:82--7(d); (3) the clerk failed to index the action in the name of the last record owner of the property, as required by N.J.S.A. 54:5--104.44; and (4) the failure to describe the premises in the final judgment as the description and identification appearing in the complaint, as required by R.R. 4:82--7(i). The court rejected all of these contentions, denying defendant's right to redemption and holding that the enumerated defects were not of such a character as would provide sufficient ground for vacating and setting aside the In rem tax foreclosure judgment. It was emphatically noted that the essentials to jurisdiction of the court are the filing of the complaint and the publication and posting of notices thereof. Where this has been done, clerical or non-essential mistakes will not void the proceedings. See City of Newark v. Yeskel, 5 N.J. 313, 74 A.2d 883 (1950), which upheld the constitutionality of the In Rem Tax Foreclosure Act.

To the same effect is Paramus v. Block 1527, Lots 1--2. Assessed to Ridgewood Park Estates, 42 N.J.Super. 369, 126 A.2d 660 (App.Div.1956), where a failure to include a precise tax foreclosure list in a borough's resolution to foreclose certain tax sale certificates, as required by N.J.S.A. 54:5--104.35, was held not error sufficient to vitiate the proceedings.

Admittedly, the narrow issues decided in the two cases previously discussed are not directly on point. However, they are indicative of a judicial disposition towards effectuation of the mandate contained in the In Rem Tax Foreclosure Act that it be 'liberally construed as remedial legislation to encourage the barring of rights of redemption.' N.J.S.A. 54:5--104.31.

Whether the failure to verify the complaint is fatal to the proceedings depends on a determination by the court of whether the requirement is imperative or merely directory.

'Decision as to whether a particular regulation ordained by ...