Town of Irvington v. Ollemar

• Decision Date: 01 November 1940
• Docket Number: 100/318, 119/467, 129/141.
• Parties: TOWN OF IRVINGTON v. OLLEMAR et al. SAME v. GEIGER et al.
• Court: New Jersey Court of Chancery

16 A.2d 563

128 N.J.Eq. 402

TOWN OF IRVINGTON

v. OLLEMAR et al.

SAME

v. GEIGER et al.

100/318, 119/467, 129/141.

Court of Chancery of New Jersey.

Nov. 1, 1940.

Syllabus by the Court.

1. The governing body of a municipality may, by resolution, apportion among subdivisions municipal liens against a parcel of real estate. R.S. 54:7-1 and 4 N.J.S.A. 54:7-1 and 4.

2. A body, such as a municipal commission, can act only by ordinance or resolution. Any action of the body which does not rise to the dignity of an ordinance is a resolution. The phrase "Be it resolved" or similar language, is not necessary in order that the action be a resolution.

3. The failure of the tax collector to enter the apportionment on the tax duplicate does not nullify the apportionment of the tax liens.

4. Generally, priority of liens is determined by the dates on which they attached to the property. First in time, first in rank.

5. The lien of the state for a transfer inheritance tax and the lien of the United States for an estate tax, are superior to municipal liens which fastened to the property after the death of decedent.

C. The state cannot be joined as a defendant in a suit to foreclose a tax sale certificate.

7. The lien of a general creditor of a decedent is subordinate to the inheritance tax and estate tax liens, as well as municipal liens.

8. A general creditor of decedent, after a year has elapsed since testator's death, may bring suit in chancery to enforce his lien and may join as defendants prior lienors when such joinder is necessary in order that full relief may be given to the general creditor.

Suits by the Town of Irvington against Anna E. K. Ollemar and others to foreclose tax sale certificates, and suit by the Irvington National Bank against Frank A. Geiger and others for a determination as to the order and priority of the liens and claims of the parties, for an account as to the amount due complainant, that the court marshal the assets of the estate of Mrs. Elizabeth Ollemar, deceased, and require certain of the defendants to resort first to realty on which the complainant had no mortgage or, in the alternative, that the several tax liens be apportioned to the various tracts, and that the Town of Irvington be restrained until disposition of the suit, from the further prosecution of the two tax foreclosure suits. On motions to strike the bill in the suit by the Irvington National Bank.

Motions to strike the bill denied, and further prosecution of the foreclosure suits enjoined.

Albert C. Kraft, Meyer Q. Kessel, and William Newman, all of Irvington, for Town of Irvington.

Irving Riker and Everett M. Scherer, both of Newark, for Irvington Nat. Bank.

David T. Wilentz, Atty. Gen., and William A. Moore, Asst. Atty. Gen, for the State.

Lum, Tamblyn & Fairlie and Charles B. Niebling, both of Newark, for Frank A. Geiger and others.

J. Albert Homan, of Trenton, for guardian ad litem.

BIGELOW, Vice Chancellor.

This litigation presents problems of the priority of several classes of taxes as well as other liens. A subsidiary question, which can be considered separately, concerns the alleged apportionment of municipal liens on a certain parcel of land in the Town of Irvington.

Block 284 on the tax map is bounded by Berkeley Terrace, Twenty-third Street, Springfield Avenue and Grove Street. All of it, except a few scattered lots on Grove Street, was assessed as lot No. 1. Mrs. Elizabeth Ollemar, who owned this land as well as much other property in the neighborhood, died January 29, 1931, devising the plot at the corner of Springfield Avenue and Grove Street to her daughter, Anna E. K. Ollemar, for life, and the rest of lot No. 1, as well as the remainder interest in the corner plot, to her executors on sundry trusts.

In this situation, on June 26, 1937, Miss Ollemar and Mr. Frank A. Geiger, as executors, presented to the "Department of Revenue and Finance, Division of Taxes and Assessments of the Town of Irvington" on a printed form supplied by the Department, an application that the taxes and assessments on lot No. 1 be apportioned among 11 subdivisions of the lot, as shown on a map which was made part of the application. Mr. McDonough, Chief Clerk of the Division, added an endorsement, also on a printed form, which recited the application and stated:

"Now therefore, the said Department of Revenue and Finance, Division of Taxes and Assessments, by the authority conferred by law, do make the following apportionment and division of the said liens, that is to say: See pages attached for apportionment.

"In witness whereof, we have hereunto set our hands this first day of July, 1937.

"Department of Revenue and Finance, "Division of Taxes and Assessments, "J. S. T. McDonough, Chief Clerk."

The attached pages, which were prepared by McDonough, show that the municipal liens with interest encumbering lot No. 1, totalled $34,399.50. This sum is apportioned, as shown by the schedule, among the 11 subdivisions, to which are given new lot numbers. The corner lot which is new lot No. 1, is stated to be subject to $1,906.69, plus interest of $343.09, making $2,232.14. The other 10 lots, to which are given various numbers, are severally allotted amounts totalling the balance of the lien.

Four weeks later, at a regular meeting of the Town Commission of Irvington held July 27, 1937, the following occurred as shown by the Clerk's minutes:

"Mayor Miller called a hearing on the apportionment of the Ollemar Property. The Clerk read the notice of hearing.

"Mayor Miller: Is there anyone present who desires to be heard?

"Commissioner Kruttschnitt: This has been in the process of work for a long, long while and it is an apportionment on the part of the Estate of Elizabeth Ollemar signed by Anna E. Ollemar and Frank Geiger who are in accord with their desire and it is in accord with ours. I offer this for final consummation.

"Commissioner Jacobi: I offer the record of the apportionment of the Ollemar Estate and move it be ratified and confirmed by the Board.

"Motion seconded by Commissioner Kruttschnitt and carried by the following votes:

"Ays: Commissioners Jacobi, Kruttschnitt, Miller. (3) "No: None."

When the application was presented to the Department of Revenue and Finance, the applicants paid $4,426.49, which was credited to the corner lot, new lot No. 1 in the apportionment calculation, and still left $2,232.14 unpaid, as I have mentioned. October 5, 1937, on application of the collector of taxes, he was appointed receiver of rents of "Block 284, Lot 1 (as apportioned)" and other Ollemar parcels, pursuant to P.L. 1933, Sp.Sess. p. 1304 N. J.S.A.App. A:4-1 et seq. His petition showed due on lot 1, $1,906.69, the same sum, exclusive of interest, stated in the apportionment. Another lot mentioned in his petition, No. 124, had no existence in the tax department before the apportionment.

On July 25, 1938, the collector reported to the court that he had collected $1,699.10 which he credited on lot No. 1 and—Miss Ollemar, the life tenant, made some payments—and "that all the arrearages of taxes and assessments on said property are now paid in full." He thereupon was discharged as receiver of that lot. His report that all taxes had been paid undoubtedly meant new lot No. 1, the corner plot, and not the old, large lot.

Despite the proceedings which I have recited, the Town claims that the tax liens were never apportioned and that the corner lot is still encumbered by liens which accrued prior to July 25, 1938, as well as subsequent liens.

The statute, R.S. 54:7-1, N.J.S.A. 54:7-1, authorizes the governing body of the municipality to apportion among subdivisions, municipal liens against a parcel of real estate.

R.S. 54:7-4, N.J.S.A. 54:7-4: "The governing body may make the apportionment by resolution. A copy of the apportionment shall be filed with the clerk and with the collecting officer of the municipality, and the charge as apportioned to each subdivision shall then be a charge or lien thereon, in the same manner as if originally so assessed or imposed."

The principal contention of the Town is that the apportionment was not made by resolution. The thought behind this contention seems to be that a resolution must read, "Be it resolved", etc, but this is not the law. A body, such as the Town Commission, "must act when assembled at stated or special meetings, and organized with a president to conduct, and a clerk to record, its proceedings. Such body can hardly act in any other manner than by ordinance or resolution. Every act must be by a vote of the members present; and, whether it is called an order, direction, or determination, it is still a resolution, because it must be resolved on, upon a motion made by some member." Dey v. Jersey City, 19 N.J.Eq. 412. All through our numerous cases dealing with municipal action, it will be seen that a board or body can act only by ordinance or resolution; these are the alternative methods. Any action of the body which does not rise to the dignity of an ordinance, is a resolution. When the Board of Commissioners of Irvington, after Commissioner Kruttschnitt had presented the Ollemar apportionment "for final consummation", passed Commissioner Jacobi's motion that the record of the apportionment "be ratified and confirmed by the Board", the Board took the action required of it by the statute.

There is no direct evidence that a copy of the apportionment was filed either with the clerk or with the tax collector. The papers which were introduced in evidence were produced by the Town but it is not shown in what offices they were found, but from the fact that the minutes of the meeting were made by the clerk, and that the apportionment was acted upon by the collector, the inference may be drawn that these provisions of the statute were followed. I need not consider whether such filing is essential to an effective apportionment. The apportionment in this case was made in accordance with...