State v. Owen.

• Decision Date: 22 March 1945
• Citation: 41 A.2d 809
• Parties: STATE v. OWEN.
• Court: New Jersey Supreme Court

41 A.2d 809

STATE

v.OWEN.

Supreme Court of New Jersey.

March 22, 1945.

Action by State of New Jersey against Marion R. Owen to recover unpaid rent under the terms of a riparian, lease. On motion to strike out defendant's answer.

Order in accordance with opinion.

Walter D. Van Riper, Atty. Gen., and Robert Peacock, Deputy Atty. Gen., for plaintiff.

Marion R. Owen, pro se.

BURLING, Circuit Court Judge and Supreme Court Commissioner.

Motion has been made before me to strike out the answer filed by the defendant in the above-entitled cause for the following reasons: (1) The answer is sham and frivolous and filed for the purpose of delay, and (2) the answer does not contain a legal defense to said complaint, and for summary judgment.

Summons was issued and the complaint was filed in this matter by the State of New Jersey, and it thereby seeks to recover a judgment against the defendant for the amount of unpaid rent under the terms of a riparian lease. The complaint is terse and as follows:

‘1. The defendant, Marion R. Owen, made application for a lease for riparian lands belonging to the plaintiff along the Atlantic Ocean in the city of Atlantic City, county of Atlantic and state of New Jersey, in accordance with the provisions of Sec. 12:3-2 et seq. of the Revised Statutes, N.J.S.A.

‘2. In accordance with said application the board of commerce and navigation granted a lease to the defendant dated December twenty fourth, nineteen hundred and thirteen, which was accepted by the defendant at an annual rental of Two Hundred Thirty one Dollars.

‘3. The defendant defaulted in the payment of said rental and the lease was foreclosed on March 6, 1926.

‘4. The amount of rental due from the date of the last payment is Twelve Hundred Fifty four Dollars and Sixty five cents and interest to date amounting to Thirteen Hundred Ninety one Dollars and fifty four cents, making a total of $2646.19.

‘5. Demand has been made upon the said defendant for the amount due plaintiff, but he has refused and still refuses to pay the same.

‘6. The comptroller of the state of New Jersey has requested the attorney general to bring this suit for money due the state in accordance with R.S. 52:19-13, N.J.S.A.

‘Judgment will be demanded in the sum of $2646.19.’

Said lease was executed by the Riparian Commissioners of the State of New Jersey and approved and signed by the Acting Governor and the defendant, pursuant to written application of the defendant, as the then alleged riparian owner of the adjoining lands referred to in said lease, in accordance with provisions of the law then existing and now contained in R.S. Title 12, Chapter 3, N.J.S.A.

The lease provided for an annual rental of $231 in two equal one-half yearly payments in advance, the first one-half yearly rental to be paid on the delivery of the lease, and thereafter one-half yearly rentals were to be paid in advance on the 24th days of June and December of each and every year.

The defendant, not being an attorney, filed and inartificially drawn and not technically precise answer. The motion in this matter is in the nature of a general demurrer and attacks the substance and not the form of the answer. Upon the presentation of the motion, the plaintiff supported its position by affidavits and exhibits and the defendant appeared pro se and opposed the motion without the benefit of supporting affidavits of his position. The hearing upon the motion was adjourned to afford the defendant an opportunity to obtain an attorney. Upon the adjourned return day of the motion, the defendant still appeared pro se and lodged an informal affidavit with the court. Argument was thereupon made by the Deputy Attorney General and by the defendant and a brief was filed by the Deputy Attorney General and a memorandum was filed by the defendant.

Under the unusual circumstances, the court has endeavored to ferret out of the answer the substantive defenses of the defendant to the action, and they appear to be as follows: 1-General denial of liability; 2-Statute of Limitations: 3-Denial of State Ownership; 4-(a) set off for value of forty acres of land in which it is alleged the defendant had an interest and which were taken by the Board of Commerce and Navigation, successor to the Riparian Commissioners, R.S. 12:2-1, N.J.S.A., without just compensation and without process of law, and (b) refund for alleged payment of municipal taxes upon lands within the confines of the riparian lease made under assessment by the municipality upon the riparian owner.

General Denial of Liability-as to the plea of general issue, in the case of Coykendall v. Robinson, Err. & App.1876, 39 N.J.L. 98, at page 99, it was held at common law that the judges repeatedly exercised in a great variety of cases, the power to strike out sham pleas. This rule was applied to the general issue as well as to other pleas, where it appeared to be a sham plea. No reason can be assigned why a defendant should be permitted to shelter himself from the power of the court to strike out a false plea, by taking refuge under the general issue. And further at page 101 ‘The inquiry is simply whether there is, in truth, any question of fact to try, and if not, if the defence is a mere pretence, it should be summarily swept away.’ And in the case of Torricelli v. Sebastini, Sup.1933, 112 N.J.L. 458, at page 460, 171 A. 526, at page 527, it was held ‘but in this state it is well settled that the power to strike out sham pleas applies to the general issue.’ To the extent therefor to which the allegations of the plaintiff are supported in fact and not controverted in fact, this defense is vulnerable. The execution of the lease is admitted. It is not denied that there was unpaid under the terms of the lease installments for rent which became due as follows: On June 24, 1921, $115.50; on December 24, 1921, $115.50; on June 24, 1922, $115.50; on December 24, 1922, $115.50 and on June 24, 1923, $115.50.

It is contended by the plaintiff that the amount due is to be calculated until the State re-entered (March 6, 1926) in the manner prescribed by statute, R.S. 12:3-49 and 50, N.J.S.A. whereas the defendant maintains that the terminal point is the date mentioned in the notice (July 20, 1923) prescribed R.S. 12:3-51, and 52, N.J.S.A. The court is inclined to the latter view since R.S. 12:3-56, N.J.S.A., provides as follows: ‘12:3-56. Rights of state as to unpaid rentals not affected. All rights, at law or in equity, which had accrued to the state for the rentals in arrears and unpaid up to the expiration of the time fixed in the notice mentioned in sections 12:3-51 and 12:3-52 of this title shall not abate but shall remain in force and effect.’

Statute of Limitations: The last principal payment that became due was therefore on June 24, 1923. R.S. 2:24-15, N.J.S.A., provides as follows: ‘2:24-15. Twenty years; actions by state for real estate or rents, issues or profits thereof. No person or body politic or corporate shall be sued or impleaded by the state of New Jersey for any real estate, or for any rents, revenues, issues or profits thereof, except within twenty years after the right, title or cause of action to the same shall accrue.’

R.S. 12:3-48, N.J.S.A., provides as follows: ‘12:48. The state treasurer shall, on or before the first Tuesday in January in each year, make out a list of all riparian leases held by the state on which rentals are in arrears and unpaid for the space of one year, and transmit the same to the board of commerce and navigation.’

This would indicate legislative intent to require a prompt resort to the collection of the debt and to obtain possession of leased premises upon default.

In a recent case, Trustees, etc., Public Schools v. Ott & Brewer Co., 135 N.J.Eq. 174, at page 177, 37 A.2d 832, at page 833, the matter of a statute of limitation in relation to the government was dealt with, wherein it was held: ‘Broadly stated, it is a rule of universal recognition that a statute of limitation should not be construed to encircle the government unless it is manifest from the mischief to be reached, the express language employed or by necessary implication therefrom, that the government was in the contemplation of the legislature. The doctrine is distinguished by the ancient and familiar maxim, ‘Nullum tempus occurrit regi.’ We are told that it probably exists, in some form, in the jurisprudence of every civilized people. It springs from the superior and preeminent policy to preserve public rights, revenues and property from injury and loss otherwise resulting from the inadvertence or neglect of public agents. In a representative government under which the people act only through the authority delegated to their agents, the reasons for the application of the doctrine continue to be cogent. The principle has been received with favor by our courts. Cross v. Mayor, etc., of Morristown, 18 N.J.Eq. 305; Trustees for Support of Public Schools v. City of Trenton, 30 N.J.Eq. 667; Jersey City v. Hall, 79 N.J.L. 559, 76 A. 1058, Ann.Cas.1912A, 696.'

It is obvious that in the express language of the limitation statute, the government was in contemplation of the Legislature, still the plaintiff asserts that the rents derived from the riparian lands are trust funds and in its brief maintains: ‘Riparian lands and the income and rents therefrom are held upon a public trust and litigation concerning them is not a proper subject to which a statute of limitations is applicable. R.S. 18:10-5 and 6 appropriate such lands and the income therefrom to the Board of Trustees for the Support of Public Schools. This income is as much dedicated to a public trust as our highways and other public properties are dedicated to a public trust and not subjected to the application of a statute of limitations. The moneys derived from the sale of riparian lands are dedicated to the public schools, as set forth in Art. IV, Sec. 7 Par. 6 of the New Jersey Constitut...