[9 NJSuper Page 523] The complaint in this cause is one for specific performance of a contract entered into between the
plaintiff and the defendant for the sale of real property in the City of Newark.
Before the court is the motion of the plaintiff to strike the defendant's answer and for summary judgment. The matter presents no dispute as to the facts. The issue to be resolved is exclusively one of law.
In 1926 the City of Newark became the purchaser of a tax sale certificate affecting the premises in question at a tax sale for taxes accrued in a sum in excess of $1,400. At that time there existed R.S. 54:5-79 which provided that the title of a purchaser at a tax sale shall cease and determine and the certificate of sale shall be void at the expiration of 20 years from the date of sale, "unless the purchaser, his heirs or assigns shall, before the expiration of that term, enter into actual possession of the land purchased, or foreclose the right to redeem it by notice or by proceedings in equity and record the evidence thereof, as provided in this chapter."
In 1942 while the tax certificate continued to remain in the control and possession of the City of Newark from the time of its purchase in 1926, the Legislature enacted P.L. 1942, c. 73, p. 315, amending R.S. 54:5-79 to read as follows: "The title of a purchaser other than a municipality at a sale shall cease and determine and the certificate of sale shall be void at the expiration of twenty years from the date of the sale, unless the purchaser, his heirs or assigns shall, before the expiration of that term, enter into actual possession of the land purchased, or foreclose the right to redeem it by notice or by proceedings in equity and record the evidence thereof, as provided in this chapter." (Italics mine).
"This act shall extend to all present, existing tax certificates held by a municipality whose terms have not expired."
The 1942 amendment became effective May 2, 1942, and by express language indicates a legislative intention that the amendment operate retroactively as well as prospectively with respect to tax certificates which were at the time of the adoption of the amendment held by municipalities where the 20-year terms of the certificates had not yet expired.
On March 11, 1948, more than 20 years after the tax sale of 1926, the City of Newark sold the tax certificate to Leonard Ferragina, predecessor in title of the plaintiff. In 1949 Ferragina conducted a tax foreclosure proceeding in this court. All parties in interest were made parties to the foreclosure proceeding by personal service and all such defendants defaulted, as a result of which on February 17, 1950, final judgment was rendered in favor of the plaintiff's predecessor in title which was recorded March 2, 1950, in the Register's office of Essex County. On June 7, 1950, plaintiff entered into the contract of sale with the defendant which is the subject matter of this suit.
The questions which present themselves are whether R.S. 54:5-79 as amended by P.L. 1942, c. 73, p. 315, pertains to remedy or substantive right? If it pertains to remedy, is there a vested right in such remedy? Is there such right vested in the defaulting owner or those claiming under him as to forbid a change in the remedy available to the taxing authority? Can the Legislature extend or remove the statute of limitations when no vested rights are thereby disturbed?
It seems to me obvious that the Legislature intended the provisions in the statute to operate as a limitation both in respect of foreclosure and redemption, for the act also limits the time within which the owner might redeem, and that therefore the statute concerns itself solely with procedure and enlarges the time not alone within which redemption may be cut off but also the time within which such right of redemption may be exercised. In either aspect the legislation in question deals not with the right but rather with the procedure to enforce that right.
The defendant contends that when the sale was held on June 28, 1926, the owner of the fee had the right to expect under the then existing law that unless the purchaser took actual possession or foreclosed the certificate by notice or by proceedings in equity that the title granted by the ...