occupancy of the premises. However, the city was apprised in the early part of 1943, in an informal way, that the premises were being occupied by the United States. On January 8, 1943, the chief counsel of the tax lien bureau of the City of Camden wrote the attorney for the government:
'As per telephone conversation had with you the other day, I called you to advise that the City of Camden has two tax sale certificates outstanding against the above parcels (the premises the subject matter of the suit) * * * . I respectfully call your attention to Chapter 54, New Jersey Laws of 1942, R.S. Cumulative Supplement 54:5-53.1 which provides that where a municipality is the holder of a tax sale certificate, such municipality shall be entitled to immediate possession of the property from and after the date of the recording of the tax sale certificate. Under the circumstances, the City would be entitled to any monies paid as rental under the condemnation proceedings instituted by the Government.'
Again this demand by letter upon the part of the city was formalized to some extent by the filing of its first petition in this court on October 17, 1944.
The objection is made by the claimants that these assertions by the city did not constitute a sufficient demand or act of taking possession as to entitle it to claim the award.
This letter of January 8, 1943, was an assertion by the city of its right to whatever rent was to be awarded under the condemnation proceedings. It gave the government (tenant) notice that it was the holder of two tax sale certificates; that they were duly recorded; that the city was entitled to immediate possession and any rents to be awarded. At the time the letter was written there could have been no other demand made for rent. The government was in possession of the premises under the court order of November 6, 1942, which allowed it to occupy and use the premises without fixing or providing for payment of rent. The question of rent was not disposed of until June 22, 1945, when the commissioners' report was approved by this court. Thereafter, on July 16, 1945, the government paid into the registry the compensation awarded. This was not the ordinary situation where the land was occupied by a private tenant to whom the city could have sent its collector to demand possession and rent. Such procedure was thwarted by the exercise of the United States of its right of eminent domain. The city was powerless to do more than to assert its position in some such form as it utilized. The just compensation paid by the United States for the use and occupancy of the premises is the equivalent of rent. United States v. General Motors Corporation, 323 U.S. 373, 65 S. Ct. 357, 156 A.L.R. 390. It is only equitable that the same advantages designed by the New Jersey Legislature for its municipalities should be preserved for the City of Camden under the circumstances of condemnation in this case, as would have been its right had the premises been occupied by a private rent paying party. The letter of the city was adequate demand for possession and the rent.
A further objection is made that should the letter be held to be adequate it could only be effective to compel the payment of rent to the city to begin as of its date, viz., January 8, 1943. Since the rental commenced November 6, 1942, under the award and was at the rate of $ 600 per month it is urged that under no circumstances could the city be entitled to the rental which accrued from the period of November 6, 1942, to January 8, 1943, which would amount to approximately $ 1200. Neither can we agree with this contention. Such technical compliance with the requirement of demand, possession and attornment by the tenant might have had some application in the case of the ordinary tenant in occupancy as against the right of a private purchaser of a tax sale certificate prior to Forster v. Davenport, supra. Here the City of Camden is the beneficiary of special legislation designed by the Legislature of New Jersey to protect its municipalities. Reasonable alertness by the city in prosecuting its right is all that can be required. Under the precipitate condemnation procedure permitted the government because of the exigencies of the national defense in time of war it was authorized to take this land by virtue of an ex parte order without any notice. Before any formal notice came to the City of Camden of the proceedings and the taking and approximately only two months thereafter it made its position clear by its letter to the government and its subsequent petition to the court. It did not 'sleep on its rights' but acted with all speed which could be expected under the circumstances with which it was confronted. Therefore it is entitled to have its demand considered to be made as of the date the rental began, namely, November 6, 1942.
It must be recognized that this fund does not represent an award for the taking of the fee simple of the lands in question. It is rent. The State of New Jersey in attempting to assert a lien of its judgments upon and to attach this fund, acted in point of time after the right of the City of Camden had become fixed by its letter of January 8, 1943. No further consideration, therefore, need be given to the arguments raised by the State of New Jersey that it has a paramount lien.
None of the other claimants have any priority over the right of the City of Camden and since we are of the opinion that it is entitled to the entire fund their claims require no further discussion.
An order will be made discharging the order to show cause issued on the petition of Eda J. Heaton, Estate of John J. McGuirk, Abe Sablosky and the Estate of William C. French, denying the applications of the State of New Jersey and Emma Barclay as Executrix of Walter C. Barclay and directing that the clerk of this court shall pay the sum of $ 19,100 deposited in the registry in this cause to the City of Camden.
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