McGeehan, Jayne, and Goldmann. The opinion of the court was delivered by Jayne, J.A.D.
In the mutually acknowledged circumstances existing in this particular case, were the plaintiffs in an action in lieu of mandamus entitled to the aid of the court to compel the defendants to apportion the municipal assessment pursuant to the provisions of R.S. 54:7-1, et seq. ?
The plaintiffs were the owners of three contiguous parcels of meadowland in the City of Newark designated as lots Nos. 36, 38, and 50 in block 5020 on the assessment rolls, and comprising 24.865 acres. The city held tax lien certificates on all three parcels.
On November 30, 1950, the plaintiffs entered into an agreement to convey to the New Jersey Turnpike Authority by a bargain and sale deed containing a covenant against the grantors' acts for the purchase price of $49,200, a portion of the area consisting of 6.704 acres, which passed across and cut through the three parcels. The price was calculated upon the allowance of about $16,760 for the acquisition of the premises, $30,740 for the consequential damages to the remaining lands retained by the plaintiffs, and $1,700 for the estimated taxes (apparently on all three parcels) for the year 1951.
Chronologically stated, the city commissioners on October 4, 1950, authorized by resolution the foreclosure of the tax sale certificate covering lot No. 50. On December 21, 1950, the city instituted an action in the Chancery Division of this court to foreclose its tax lien on lot No. 50 in pursuance of the statute known as the "In Rem Tax Foreclosure Act (1948)." N.J.S.A. 54:5-104.29, et seq. On January 10, 1951, the foreclosure of the tax sale certificates pertaining to lots Nos. 36 and 38 was duly authorized. On February 26, 1951, the
plaintiffs conveyed the portions of the three parcels to the New Jersey Turnpike Authority in conformity with the terms of the agreement, and on February 28, 1951, the city instituted an action of like nature to foreclose its tax liens on lots Nos. 36 and 38.
At the consummation of the conveyance to the Turnpike Authority, the plaintiffs executed a "Closing Statement" which concluded as follows: "The above statement is hereby approved and the disbursement of moneys as indicated therein is hereby authorized and directed." In the statement there is an item entitled "Allowance for unpaid municipal liens" opposite which appears:
"Taxes and Int to 2/20/51 16,319.34
1951 Est. tax*fn* 2,174.76 18,530.89"
Beneath the item "Remarks" appears:
The taxes for the year 1951 amounted to $2,481.62; those due on lots Nos. 36, 38, and 50 for prior years and for the first half of 1951 calculated ...