On appeal from the Superior Court, Chancery Division, Morris County.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Oliphant, J.
This is an appeal from a judgment of the Superior Court, Chancery Division, in the foreclosure of a tax sale certificate in which it was held that the defendant-respondent as mortgagee of the lands on which the appellant held a tax sale certificate might redeem the said lands in the foreclosure proceedings.
The appellant appealed to the Appellate Division and the cause was certified here on our motion.
The facts are not in dispute. The appellant by assignment is the owner of a tax sale certificate issued by the Township of Jefferson, Morris County, New Jersey, pursuant to a sale for unpaid municipal liens for the years 1946 and 1947. The defendant, Gertrude Kestenbaum was the record
owner of the premises. On May 24, 1928, she mortgaged the premises to D.C. Smith Realty Corporation to secure the sum of $25,000 with interest at 6%. The D.C. Smith Realty Corporation assigned said mortgage to the defendant-respondent, Louis J. Jacobson, by an assignment dated September 12, 1928.
On January 22, 1951, appellant instituted an action in the Superior Court, Chancery Division, to foreclose its tax sale certificate. The defendant-owners, Gertrude Kestenbaum and John Kestenbaum, were defaulted for their failure to appear and answer. The defendant-respondent, Jacobson, answered the complaint and tendered redemption of the amounts due on the appellant's certificate. By order the complaint was amended to allege, inter alia, that no consideration was given for the mortgage and if there was a valid consideration the debt has been paid and satisfied, or, the enforcement of the said mortgage as a lien on the lands and premises described in the complaint is barred by the statute of limitations.
It was stipulated that no payment had been made on the defendant-respondent's mortgage for a period of more than 20 years. The case was tried on the pleadings and the pre-trial order fixed the issues as follows:
"a. Whether the mortgage of the defendant Jacobson is enforceable; and if his mortgage is not enforceable, has he the right to redeem from the tax sale in question.
b. Whether plaintiff may resist redemption by the said defendant because of the alleged unenforceability of his mortgage.
c. If said defendant is entitled to redemption, what is the amount due to plaintiff."
The sole question raised by the appellant on this appeal is whether or not defendant is a mortgagee within the meaning of ...