In lieu of prerogative writ.
This action in lieu of prerogative writ seeks to compel the defendants, the Commissioners of the City of Newark and the city itself to apportion taxes under R.S. 54:7-9 between property conveyed by the plaintiffs to the Newark Turnpike Authority under a deed dated February 19, 1951, and the property remaining in the plaintiffs after that conveyance.
Prior to that conveyance the plaintiffs were owners of three contiguous parcels of meadowland in the City of Newark known as Lots 36, 38 and 50 in Block 5020 on the assessment rolls of the City of Newark. Previous to the time of such conveyance the city had purchased lots 36, 38 and 50 in sales for unpaid taxes and held tax certificates thereon. On December 21, 1950, the city filed a complaint in the Chancery Division of this court under the In Rem Tax Foreclosure Act, N.J.S.A. 54:5-104.29 et seq. , to foreclose its tax sale certificate on Lot 50. And on February 28, 1951, the city filed another foreclosure action against Lots 36 and 38.
In the present case on a prayer for preliminary relief the plaintiffs on April 27, 1951, obtained an order to show cause and ad interim stay of the Chancery Division proceedings instituted by the city, which was continued by consent until June 26, 1951, when it came on to be heard on the question of whether the stay should be continued pending final hearing. At that time, it appearing that material disputed questions of fact were not involved and that it was necessary to take testimony on matters not covered by the preliminary affidavits and the complaint, the parties stipulated that, instead of the court confining itself to a determination whether the restraint should be continued, the case be heard finally upon the testimony to be taken on that day and on the pleadings and affidavits in the case. The answer had not as yet been
filed by the attorney for the defendants who stated on the record what issues would be raised by the answer, and it was agreed that the defendants should immediately following the hearing file an answer setting up the issues so stated. Testimony was taken and the answer filed as provided for and the matter was therefore submitted to the court for final determination and briefs were exchanged.
The facts in the case are that the plaintiffs negotiated with the New Jersey Turnpike Authority to sell the Authority a part of each of the three tracts referred to which belonged to the two plaintiffs. A survey showing the three tracts is in evidence, Exhibit D-1, and the property has an area of approximately 25 acres. The Authority desired seven acres of land for its right of way cutting through all three tracts which were owned by the plaintiffs. The negotiations between the plaintiffs and the Turnpike Authority resulted in an agreement to convey land on the plaintiffs' part which was dated November 30, 1950, and approved and accepted by the New Jersey Turnpike Authority on December 28, 1950. The agreement was to convey by bargain and sale deed with covenant against the grantor's act for a consideration of $49,200. The plaintiffs agreed that ingress, egress or passageway to or from the lands to be conveyed was not to be given specifically or by implication. Testimony was submitted at the trial fixing the figures as to how the consideration for the sale was arrived at and was to the effect that $16,710 was for the value of the land sold, computed at the rate of $25 per acre, and that $30,769 was to be paid for damages for severance, namely, damages to the remaining lands of the plaintiffs, to which was added the sum of $1,700 for estimated 1951 taxes in full, making a total consideration of $49,179, and for round figures the consideration was entered in the agreement at $49,200.
The Garden State Title Insurance Company represented the Turnpike Authority at the closing on February 26, 1951, and the closing statement as submitted by the Garden State Title Insurance Company was signed and agreed to by the
two plaintiffs and is in evidence, Exhibit P-3. The agreement to convey the land is also in evidence, Exhibit P-2. In the closing statement the sale price is stated as $49,200 and there was allowed for unpaid municipal liens:
"Taxes and Int to 2/20/51 16,319.34