Wittes v. Repko

• Decision Date: 16 October 1929
• Citation: 147 A. 498
• Parties: WITTES v. REPKO et al.
• Court: New Jersey Court of Chancery

147 A. 498

WITTES

v. REPKO et al.

Court of Chancery of New Jersey.

Oct. 16, 1929.

(Syllabus by the Court.)

Suit by Anna Wittes against Michael Repko and others. Decree for defendants.

Riker & Riker, of Newark, for complainant.

Meaney & Lifland, of Jersey City, for defendants.

FALLON, Vice Chancellor. This is a suit to foreclose defendants' right to redeem a certificate of tax sale. The facts stated herein are based upon the pleadings, and upon conceded facts set forth in briefs of counsel for the respective parties, upon which the matter sub judice was submitted to the court for determination. The defendants are entitled to redeem, and I will advise a decree accordingly. The complainant's bill prays that the defendants, or one of them, may be decreed to pay to complainant the amount found due to her, with interest and costs, and in default thereof the defendants stand debarred and foreclosed.

The amount required to redeem, according to master's report filed March 23, 1929, is $108.71. The bill of complaint is based upon P. L. 1919, p. 564, amending section 49 of the Tax Act of March 4, 1918 (P. L. 1918, p. 897), which provides: "The purchaser, or his heirs or assigns, in addition to the foregoing remedy, and at anytime after the expiration of the term of two years, whether notice to redeem has been given or not, may file a bill in equity to foreclose the right of redemption, but on filing such bill the right to redeem shall exist and continue until barred by the decree of the Court of Chancery. * * *" The complainant must be content with the grant of her prayer for relief wherein she asks that the defendants pay the amount found due to her. Bourgeois v. Risley Real Estate Co., 82 N. J. Eq. 211, 88 A. 199. The pleadings and briefs aforesaid show that on November 5, 1923, the tax collector of the borough of Linden sold to said borough the premises described in the bill of complaint for the sum of $20.08, representing the amount of the unpaid taxes for the year 1922, together with interest and costs of sale. A certificate of sale was delivered to said borough. On August 5, 1926, the (borough) city of Linden assigned said certificate to Saul A. Wittes, who subsequently assigned same to the complainant herein.

The affidavit attached to the bill, made by the solicitor of the complainant, recites that "he has made diligent and careful inquiry for the address of the aforesaid defendants as mentioned in said bill, and has been informed that they resided at one time at No. 68 Green street, New York City. Deponent further says that he has made a careful and diligent inquiry, and has been unable to ascertain whether the said defendants are still alive, or, in the case of death of one, whether the survivor has remarried, or is still unmarried, or, if both have died, has been unable to ascertain their respective heirs, devisees, and personal representatives, their names and addresses, or such who would be proper parties defendant to this suit. Deponent has made such inquiry and prosecuted the same in any and every way, manner and direction, whereby deponent thought it might be possible to gain such information." A further affidavit, made by the same solicitor, intended as "proof of inquiry and mailing" in the instant foreclosure suit, recites in part as follows: "I was informed by the tax collector's office of the city of Linden that the said defendants resided at No. 68 Green street, New York City, and to which address I forwarded a copy of the notices of this suit to each of said defendants, but both of these notices were returned "Cannot be found." The latter mentioned affidavit was filed as a basis of publication proceedings against the defendants, because of the fact that process of subpoena issued on January 17, 1927, directed to the defendants, was returned "non est." Such affidavits are clearly insufficient in law upon which to predicate divestiture of defendants' title to the lands described in the complainant's bill of complaint.

The pleadings and briefs aforesaid likewise disclose that the defendants for a period of approximately 25 years, and until the year 1924, resided at No....