Rodgers v. Cressman

• Decision Date: 07 August 1925
• Citation: 130 A. 17
• Parties: RODGERS v. CRESSMAN et al.
• Court: New Jersey Court of Chancery

130 A. 17

RODGERS

v. CRESSMAN et al.

Court of Chancery of New Jersey.

Aug. 7, 1925.

Suit by Charles L. Rodgers against Carrie M. Cressman and others to foreclose a tax lien, submitted on agreed statement of facts, Decree advised for defendants.

H. H. Wainwright, of Manasquan, for complainant.

Hopkins & Herr, of Hoboken, for defendants.

BERRY, V. C. The complainant, on July 8, 1905, purchased at tax sale, held by the collector of taxes of the borough of Lavallette, Ocean county, N. J., the lands described in the bill of complaint. The bill to foreclose was filed by the complainant a few months prior to the expiration of the 20-year period limited in the Tax Act of 1903 for barring the right of redemption. After the bill was filed and an order of publication against absent defendants taken, the defendant Carrie M. Cressman applied to the solicitor of the complainant to redeem the property from the tax sale. Thereupon, without further pleadings, the cause was submitted to this court upon an agreed state of facts and under stipulation that the court might determine the question of law raised by the bill to foreclose, the offer to redeem, and the agreed state of facts.

This state of facts shows that the tax sale above referred to was held under the provisions of the 1903 Tax Act (4 C. S. p. 5065); that the complainant paid, as the purchase price of said lands at said sale, the sum of $4.60, which represented the taxes assessed against said lands for the years 1903 and 1904, together with interest and costs accrued thereon; that the tax sale was regular in every respect; and that the complainant se-sured a valid and effectual tax certificate therefor, which was dated July 14, 1905, and duly recorded on August 21, 1905, in the office of the clerk of Ocean county, in Book 295 of Deeds, p. 96. Apparently it was not recorded as a mortgage, as provided in section 56 of the said Tax Act, and the stipulation does not disclose whether the certificate was entered in the record of unpaid taxes for the taxing district by the county clerk as provided in said section. As this point, however, is not raised in the brief of counsel for the defendant, I shall assume, for the purpose of this decision, that the certificate was so entered in the record of unpaid taxes.

Subsequent to the tax sale, the complainant paid taxes assessed against said lands from 1905 to 1924, both inclusive, including a street assessment in 1913 of $65.17, making a total of municipal liens paid by the purchaser subsequent to the sale of $186.18. After the entry of the order of publication above referred to, the defendant tendered to the complainant the sum of $4.60, the amount shown by the certificate of tax sale to have been paid by Mm, together with clerk's fees for recording, interest thereon, and costs of the suit. The complainant refused said tender, and claimed to be entitled, not only to the sum so offered, but to all of the amounts paid by him for municipal liens subsequent to the tax sale, with interest on each of such payments, which, the complainant claimed, amounted to $357.20, besides the costs of suit. The purchaser at tax sale filed no proof with the collector of taxes of the borough of Lavallette of the amount of subsequent liens and expenses incurred, such as is required by section 43, c. 237, P. L. 1918, until some time after this suit was begun, and after the tender above referred to was made. The sole question at issue here is whether or not the defendant is entitled to redeem upon payment to the complainant of the amount tendered, representing the purchase money shown on the certificate of tax sale, etc., or whether she is also obliged to reimburse him for the subsequent municipal liens paid by him, with interest; and this raises the question as to whether or not the defendant's rights of redemption are controlled by the 1903 Tax Act or by the tax sale revision of 1918 (P. L. 1918, p. 883).

It is contended, by counsel for complainant, that the defendant's rights of redemption are determined by the 1918 act, and that therefore she has no right to redeem except upon payment of all subsequent taxes and municipal liens paid by the complainant, together with interest thereon and costs. On the other hand, counsel for defendant claim that defendant's rights are governed by the act of 1903; that that act requires the defendant to pay only "the amount of purchase money shown on the certificate, with 12 per cent. interest thereon, together with such other fees and expenses," etc., as provided in section 57 of the 1903 act, and cites, in support of such contention, the case of Moore Securities Co. v. O. J. Hammell Co. et al. (N. J. Err. & App.) 127 A. 207.

The sale having been made under the act of 1903, the proceedings to foreclose were properly taken under that act. Moore Securities Co. v. Hammell et al. (N. J. Err. & App.) 127 A. 207; Welles v. Schaffer (N. J. Ch.) 129 A. 622.

Section 57 of the Tax Act of 1903, as it stood in 1905, at the date of the tax sale here in issue, reads as follows:

"The owner, mortgagee, occupant or other person having an interest in the laud 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, or where the redemption is by a mortgage or other persons having a lien on the land or not primarily liable to pay the tax, the person so paying shall succeed to the tax lien paid by him, and the purchaser shall on receipt of the redemption money at the option of the party making the payment either assign the certificate of sale by assignment under seal and acknowledged as a conveyance of land to the person redeeming, or execute a satisfaction of the certificate of sale or cancel the same by endorsement in the manner required by law to satisfy or cancel a mortgage, whereupon the record of the lien shall be canceled by the county clerk or register in like manner and for the same fees, as in the case of mortgages." P. L. 1903, § 57, p. 431.

It is obvious that, if this section of the Tax Act of 1903 controls the rights of the defendant, then she was entitled to redeem upon her tender. It is equally obvious that, if the 1918 act applies the tender was not sufficient, as that act provides that the owner may redeem the lands sold for taxes by paying to the collector, for the use of the purchaser, "the sum paid at the sale with interest, together with expenses incurred by the purchaser and subsequent municipal liens and interest and costs thereon," provided the holder of such title shall have made and filed with such collecting officer an affidavit of the amount of such payment.

Section 59 of the tax sale revision of 1918 reads as follows:

"This act shall be deemed and taken to be a remedial act, and to operate both prospectively and retrospectively, and be liberally construed to effectuate the remedial objects thereof." P. L. 1918, p. 899.

Section 61 of said act reads as follows:

"All acts, general and special, inconsistent with the provisions of this act, are hereby repealed, but this repealer shall not affect any rights heretofore established or created; provided, however, that this section shall not be construed to prevent the continuance and completion under the laws in force at the time such proceedings were commenced of any other proceeding or proceedings not herein mentioned which may have been or may be pending and remain unfinished and incomplete at the time this law shall take effect." P. L. 1918, p. 900.

Section 62 of said act reads as follows:

"This act shall take effect on the first day of July, nineteen hundred and eighteen, and its provisions shall extend to proceedings on and after that date relating to any taxes, assessments for improvements or other municipal charges, heretofore or hereafter assessed, or imposed or which became a lien before or after that date." P. L. 1918, p. 900.

Counsel for complainant contends that the defendant, not having taken any steps toward redemption of these lands from tax sale under the 1903 act, prior to the passage of the 1918 act, thereby lost whatever right she had under the 1903 act, and is obliged now to proceed under the 1918 act in order to redeem; that the 1918 act is expressly retrospective; that there was no vested right of redemption in the defendant until after tender, and, not having made any tender until after the adoption of the 1918 act, there can be no objection to applying the provisions of that act retrospectively to the sale in question.

I am unable to agree with counsel for complainant on these points. In the case of Moore v. Hammell, supra, the court, in discussing the rights of a tax purchaser under the 1903 act, said:

"One of those rights was to acquire a tax title by mailing a notice to redeem, etc., without any requirement of publication."

The 1918 act requires publication in addition to mailing a notice. Continuing, the court said:

"Moreover, the proviso saves any proceedings under the former law not complete at the time the 1918 act takes effect. The serving of notice to redeem is part of the tax sale 'proceeding' which is completed only after notice is served, proof of service made and filed, and time for redemption has expired."

In the instant case, in considering the rights of the defendant,...