Opinion
05-19-1910
FITZSIMMONS v. BONAVITA et al.
John Francis Cahill and Mr. Bernhard, for complainant. Sweeney & Scoppettone, for defendants.
Bill by Margaret Fitzsimmons against Euplio Bonavita and others. Heard on bill, answer, replication, and proofs. Bill dismissed.
John Francis Cahill and Mr. Bernhard, for complainant.
Sweeney & Scoppettone, for defendants.
EMERY, V. C. This bill is filed by the purchaser at tax sale against the owners of the property sold, and two holders of mortgages thereon, to foreclose the equity of redemption, and is filed under the provisions of section 59 of the act for the assessment and collection of taxes. Revision 1903 (P. L. p. 394). The substantial dispute is whether, before filing the bill, the owner tendered to the purchaser the amount she was entitled to receive under the act for the redemption of the lands. The land, assessed at the value of $200, was taxed for $4.52, and on October 19, 1906, was sold to complainant for the term of 1,000 years for $7.57. This latter sum includes the fees and expenses of the sale, which by the fifty-fifth section of the act (P. L. p. 430) are definitely fixed and are made part of the tax lien and required to be paid by the purchaser. There are also fixed by section 56 of the act certain definite fees or costs for proceedings which may be taken by the purchaser at the sale to complete his title. These are fees of the county clerk for entering and indexing the purchaser's certificate of sale, or at the purchaser's option, for recording the certificate as a mortgage.
The fifty-seventh section provides that the owner may redeem the lands within two years from the date of sale, by paying to the purchaser the amount of purchase money shown on the certificate, with 12 per cent. interest thereon, "together with such other fees and expenses as may be incurred by the purchaser under this act," and, on the purchaser receiving such payment from the owner, the sale is declared void. If the purchaser on proper tender does not cancel the certificate, redemption may be made (section 58) by paying to an officer designated, with an affidavit showing the right to redeem, and paying him 1 per cent. of the amount for his compensation. The owner in this case, on February 10, 1907, tendered to the purchaser the sum of $10.87, being $7.57 for the purchase money in the certificate, 30 cents for interest, and $3 to cover any additional fees and expenses under the act. The purchaser refused to accept this tender and demanded $10 as fees and expenses incurred under the act. This is claimed not as a fee or expense definitely fixed by the statute, but as a reasonable fee for the services actually performed by the purchaser's counsel in searching the title.
The act (section 59) provides, as one method of barring the right of redemption, that the purchaser may serve written notices to redeem upon the persons interested in the land, and that, if not redeemed pursuant to the notice, the purchaser may annex the notice and affidavit of service to the certificate of sale with an affidavit of nonredemption and file in the county clerk's or register's office, where they shall be recorded as a deed; the notice, affidavit, and record being presumptive evidence of the service and facts. The foreclosure in equity is made by the section an additional remedy which may be taken whether notice to redeem has been given or not. Notices to redeem were given in this case, and it is contended that inasmuch as the purchaser has the right to foreclose the equity of redemption by giving the notices, and in order to give them properly must have the records searched, these expenses for searches are therefore to be included in "such other fees and expenses as may be incurred under the act," as payable on redemption, and it is further claimed that, as the act does not fix the amount of these fees for searches, the purchaser is entitled, on application to redeem, to reasonable fees and expenses, to be finally ascertained on proof in court, in case of dispute. Under this contention the amount payable on redemption is uncertain, and this construction of a tax act should not prevail, unless it is clearly the intention of the act. So far as the tax itself is concerned, and the fees and expenses of the sale to pay the same, there can be no question that the amount to be levied, either by way of tax or fees and expenses, must be certainly and definitely fixed by the tax act itself, and that no fees or expenses except such as are definitely and clearly provided for in the law itself could be raised by sale, or imposed on the land. Road Commissioners v. Freeholders of Hudson, 45 N. J. Law, 173, 175 (Err. & App. 1883). The tax and the warrant for sale taken together are the final and conclusive adjudication of the amount due and the execution for raising the amount with definite fees. It has been held that expenses for raising the tax by way of sale cannot be added to the tax unless authorized by statute. Hapgood v. Morten, 28 Kan. 764, cited Black, Tax Titles (2d Ed.) § 235 (*298).
The question is whether on the redemption of a tax this principle of certainty in the amount to be paid is also required, and whether any other fees or expenses incurredafter the purchase than those which are specially provided for in the act can be demanded as a condition of redemption. In my judgment they cannot, and, in the absence of a clear and express legislative intent to the contrary, no fees or expenses other than those definitely fixed by the act should be required to be tendered. By an act of May 15, 1907 (P. L. p. 459), passed after the tender in this case, section 57 was amended, and fees for searches in ascertaining the owners (not exceeding $10) are expressly allowed to the purchaser. There are certain fees for expenses incurred after the purchase, definitely fixed by the act, being (section 56) the clerk's fees for entering the certificate, and the fees for recording are also certain, these being fixed by the recording acts, and also the fees for affidavits and notices (when given), which are rendered certain by the fees and costs acts. But nowhere does the act authorize a fee for searching the title to ascertain the owners, and, although this may be a reasonable expense for the purchaser to incur in order to perfect his title, the expense of the search cannot be imposed on the owner as a condition of redemption, in the absence of a clear and express provision. The general rule as to costs and expenses incurred in legal proceedings is that statutory authority is necessary to impose this burden on a defendant, in addition to the debt or obligation. The addition of costs and expenses to a tax, either by way of sale or redemption, calls, I think, for a strict enforcement of the rule. There is no dispute that the sum of $3 tendered was sufficient to cover any expenses of indexing or recording, or the fees of the notices covered by the statute, and in my judgment the tender was sufficient and should have been accepted. The owner, on the refusal to accept the tender, at once filed the affidavit required by the fifty-eighth section and received a certificate of redemption which was filed with the county clerk on the 21st day of February, 1907.
The defendant's rights under the act therefore became vested before the act of 1907 and are unaffected thereby, and the complainant being, under section 58 of the act, entitled to receive from the city treasurer the redemption money upon the surrender of the certificate of sale, must be remitted to that remedy for recovering the money due him, and the bill to foreclose must be dismissed, with costs.