For the prosecutrix, Louis G. Morten.
For the defendant, Donald M. Waesche.
Before Justices Donges, Heher and Colie.
The opinion of the court was delivered by
HEHER, J. On July 17th, 1945, Frederic Andreas and Mabel Moore Andreas, his wife, executed and delivered to the Township of Teaneck a deed of conveyance for a tract of land comprising four acres, situate on the Hackensack River, within the township, "subject to" the following "reservations, exceptions, conditions and restrictions:" (1) the named grantors, "or either, or the survivor of them, shall have the right to the full, complete, and undisturbed possession, use, enjoyment,
and control" of the lands "so long as either may live, and without the obligation to pay any tax or taxes" thereon; (2) Upon the "termination of the life estate," the lands "shall be used by the public for park, playground, or other recreational purposes and activities, and in the event the grantee shall use or suffer the use of said premises for any other purpose," the conveyance "shall thereupon become void and the title * * * shall revert to the heirs-at-law of said Frederic Andreas, who shall have the right to re-enter and repossess the same;" (3) The lands "shall be named in an ordinance to be adopted" by the grantee township, "upon the termination of the life estate, as the 'Maria W. Andreas Memorial Park,' and shall thereafter be known as such, and a suitable dedicatory monument shall be placed thereon;" and (4) The residence then "standing upon the land * * * shall be taken down and removed from the premises" by the township "within one year after the termination of the life estate by the death of the surviving life tenant, or by the surrender of the" township "of the life estate by the grantors * * * or the survivor of them." The title to the tract was vested in Frederic Andreas by the last will and testament of his mother, in whose memory the lands were thus dedicated for park purposes. The property served as the family homestead from the time of its acquisition by Maria on April 30th, 1890.
On September 4th, 1945, the township, by ordinance, accepted the deed, subject to all the reservations and conditions therein made and imposed. The ordinance also provided that, upon the termination of the life estate reserved by the deed, "the lands * * * shall be known as the 'Maria W. Andreas Memorial Park,' and a suitable dedicatory monument shall be placed thereon," and the dwelling "now standing upon the land * * * shall be immediately taken down and removed from the premises." And the township expressed, "for and on behalf of the people of Teaneck, its deep and sincere appreciation for the splendid public spirit which prompted" the grantors "to make the gift to the people of Teaneck."
Prosecutrix challenges this municipal action as ultra vires, in that the first reservation contained in the deed constitutes an exemption of the lands from taxation during the continuance
of the life tenancy, in disregard of the provisions of article IV, section VII, paragraph 12 of the State Constitution and R.S. 54:4-3.3. It is said that under the terms of that reservation the lands cannot be used for "public purposes" during the existence of the life estate; ergo, the obligation to pay taxes continues so long as "the possession, use, enjoyment and control thereof" remain in either grantor.
It was not within the province of the municipality to grant an exemption of the land from the burden of taxation. But what was done here does not purport to be that; nor is it such in fact. There was an acceptance by the municipality of a conveyance of land dedicated to park purposes, subject to the reservation of a life estate in the grantors, "without the obligation to pay any tax or taxes" thereon. This was in the exercise of the power conferred by R.S. 40:60-2, 40:61-1, 40:67-1, to acquire, "by gift, devise, purchase or condemnation," lands for use as public parks, and to accept lands dedicated to such use. It is immaterial whether the transaction be termed a "gift" or a "purchase." What the municipality did was to assume the burden of the taxes assessed against the lands during the existence of the life tenancy, as a consideration for the transfer; and the inquiry is whether the contract represents a bona fide and reasonable exercise of the statutory power to acquire lands for park purposes, or is in essence a usurpation of the tax exemption authority. The assessing authority is lodged by statute in the local assessor and the county board of taxation, and not in the governing body; and there was no pretense here at rendering the lands nontaxable during the pendency of the life estate, but rather to assume the payment of the tax levied. R.S. 54:4-23 (as amended by chapter 120 of the laws of 1943); 54:4-27, 54:4-35, 54:4-46, 54:3-13. The essential question is whether the consideration for the conveyance, ...