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Coleman v. Sweeney

Decided: January 10, 1951.

LEO COLEMAN, ADMINISTRATOR OF THE ESTATE OF RUTH ELLEN COLEMAN DIJOLES, PLAINTIFF,
v.
HARRY SWEENEY, ET UX., ET AL., DEFENDANTS



Haneman, J.s.c.

Haneman

This is a suit for the foreclosure of a tax sale certificate.

Fred Coleman, plaintiff's father, purchased the tax sale certificate from the Borough of Lawnside, New Jersey, on March 1, 1940. Shortly thereafter he took possession of the premises covered by the tax sale certificate and performed certain repairs and alterations thereon.

On November 18, 1940, Fred Coleman died, bequeathing the aforementioned tax sale certificate to Lulu V. Hughes, in trust for his daughter, Ruth Ellen Coleman, until said daughter reached the age of 18 years. Ruth Ellen Coleman (Dijoles) was of age on the date of the death of her father. She died on January 10, 1949, a resident of Philadelphia, Pennsylvania, and the plaintiff Leo Coleman, her brother, was appointed administrator of her estate.

At the time originally set for trial, one Sarah Sweeney and Frances N. Thompson, widow and daughter, respectively, of Peter Albert Sweeney, who was one of the principal devisees of Roger Sweeney, answered and appeared for trial. Thereafter, the matter was continued by consent and leave was given to counsel for Sarah Sweeney and Frances N. Thompson

to attempt to locate the other devisees of Roger Sweeney. The answering defendants are all of the devisees or the heirs of the devisees of Roger Sweeney, in whose name the record title in fee simple to the premises is vested.

The plaintiff seeks to add to the amount which the statute (R.S. 54:5-58) allows him to collect upon a redemption, the cost of improvements and repairs made to the premises by Fred Coleman.

The defendants desire to redeem for such sum as the court shall find due under R.S. 54:5-58, with the allowance of a credit to the extent of the reasonable rental value of the premises during the occupancy and possession of Fred Coleman, Ruth Dijoles and plaintiff, or the actual rents collected by said parties, whichever is found to be greater. The defendants seek to establish the reasonable rental value of the premises in the condition in which Fred Coleman put them and not in the condition in which he found them.

The rights of the respective parties in connection with the foregoing demands are the sole questions here involved. In connection with this matter I find the following facts. The improvements on the realty consisted of a two-story house in need of repair. It had been unoccupied for some time prior to the occupancy of Fred Coleman. The house required painting both inside and outside. The paper on the interior was in bad condition. There were no inside toilets or bathrooms, no well, no electricity, no hot water heater and no furnace. The roof leaked. I find that the said Fred Coleman, who was a building contractor, installed a bathroom, a toilet, electricity, a well, a furnace, a bucket-a-day stove for furnishing continuous hot water, and a new kitchen sink. He as well built a new cesspool, painted the entire house inside and outside, papered the interior of the house and replaced a number of rotted timbers.

There is no doubt that Fred Coleman, as the holder of the tax sale certificate, obtained no possessory right and his entrance into possession amounted to a trespass. Plaintiff is therefore not entitled to recover for any expenditures for repairs or improvements. Diamonde v. Township of Berkeley ,

142 N.J. Eq. 140, 59 A.2d 617 (Ch. 1948); Forster v. Davenport , 128 N.J. Eq. 385, 16 A.2d 614 (Ch. 1940); Nelson v. Naumowicz ...


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