Opinion
10-02-1900
DEVINE v. FRANKS.
W. H. Francis, for complainant. James R. Nugent, for defendant.
Bill by Arthur Devine against Joseph K. Franks to quiet title to certain realty. Heard on answer, replication, and proof. Decree for complainant
W. H. Francis, for complainant.
James R. Nugent, for defendant.
EMERY, V. C. Upon the issue raised by the pleadings, or argued at the hearing upon the proofs, I reach the following conclusions:
1. The court has jurisdiction; the defendant's claim being that of a lien upon complainant's land under a sale for taxes, as to which lien, if it exists, the complainant has a right of redemption. By the act quieting titles, under which the bill is filed, the court is required by the final decree to fix and settle the rights of the parties in the lands. Equity has jurisdiction for the purpose of redeeming lands from taxes (Culver v. Watson, 28 N. J. Eq. 548), and, therefore, in fixing the rights of the parties in the land, would clearly have the right to determine whether defendant's lien existed, and to what extent, and whether complainant had the right to redeem. Baldwin v. City of Elizabeth (Runyon, Ch., 1886) 42 N. J. Eq. 11, 6 Atl. 275, approved on this point. In re Commissioners of City of Elizabeth, 49 N. J. Law, 448, 507, 10 Atl. 363, is an authority for the Jurisdiction. The Lembeck Case, 31 N. J. Eq. 255, does not apply to the case.
2. The objections to the constitutionality of the Martin act are not well founded, and section 13, providing for sale of lands in fee for future taxes, is within the scope of the last clause of the title, "and to provide for the sale of lands subjected to future taxation and assessment." One of the main objects intended to be secured by the Martin act was the sale of lands in fee, rather than for a term of years; the latter course having resulted in an accumulation of arrearages. The final adjustment of these arrearages, and a sale of the lands in fee to pay the tax or assessment as adjusted, were part of the entire scheme for changing the system of sale in this respect, and the clause and section in question extend the new system to future taxes and assessments. It was not necessary that the title to the act which related to the sale of lands for future taxes and assessments should specify the conditions fixed by the section for the sale, viz. that the rate does not exceed 3 per cent., that the taxes should be unpaid for three years, and that the municipal authority should direct the sale.
3. The provision of section 13 for sale of the lands in fee was not substitutionary for the previous right of the municipality to sell for terms of years, but additional thereto; and the city did not, by the sale for years to itself as purchaser, exhaust its power to sell in fee under section 13 of the Martin act, if at the time of the subsequent sale it was still the purchaser under the sale for years under the charter. Under this sale, and while holding the certificate, it is substantially a lien-holder only, and the whole scheme of the Martin act is based on this theory. In re Commissioners of City of Elizabeth, 49 N. J. Law, 502, 503, 10 Atl. 363, decides that, under a mere certificate of sale for taxes made to the city, the title of the owner is not devested, and the taxes are still "unpaid."
4. The sale under the Martin act for the taxes unpaid being regular and legal, this court cannot set aside the sale as invalid because the amount of the taxes for which the lands were sold was excessive, by reason of including the costs of the previous sale. An inquiry of this character can only be made in direct proceedings by certiorari in the supreme court, to which the municipality is a party, and cannot be made in this suit against the purchaser from the city, who has paid on the purchase the tax as claimed by the city.
5. In reference to the additional amounts claimed by the defendant "as costs and expenses necessarily incurred in proceedings taken for the purpose of perfecting title thereto," the provisions of the law are as follows: Section 6 of the original Martin act (3 Gen. St. p. 3372, p. 415), allowed any person having an estate in or mortgage on the lands to redeem within six months after notice of such sale had been given to him by the purchaser. A supplement passed in 1892 (P. L. p. 395), amended in 1893 (P. L. p. 376; 3 Gen. St. p. 3389, par. 447), provided that on redemption of the lands, in addition to the taxes, etc., there should be paid to the purchaser "all the cost and expenses necessarily incurred in proceedings taken for the purpose of perfecting title thereto, including fees for searching, provided the purchaser should, on request of the person redeeming, make and file with the city clerk a statement under oath of such costs and expenses." Section 5 of the act of 1892 further provided (3 Gen. St. p. 3386) that nothing should be paid for these costs and expenses unless the mayor of the city approved the amount to be paid; and the amendment of 1898 (r. L. p. 420) leaves this provision in force. The answer sets up these costs and expenses as $45.25 for the first tract, $49.20 for the second, and $40.50 for the third; but no proof whatever has been offered by the defendant to show either that they were necessarily incurred for perfecting the title, or that the mayor of the city has approved them. The only proof offered in relation to these expenses on either side is that of the complainant, who shows that, by reason of all the tracts being included within the same title, the multiplication of the same search fees for each tract was not necessary, and that $50.63 would cover the entire cost necessary for perfecting the title, if defendant in fact made such searches after his purchase for the purpose of perfecting his title. This would be the limit of his recovery for these expenses, under the present proofs; but having failed to make any proof whatever of the expenses being necessary, or of their approval by the mayor, they cannot be allowed, under the act.
6. The decree will declare that the defendant has a lien upon the lands in question for the amount paid by him to the city, with interest, and that the complainant has a right to redeem upon paying these amounts.