This litigation arises out of the following circumstances:
June 28, 1935 the Collector of Taxes of the Borough of Highland Park sold to the Borough of Highland Park real estate known as Lots 39 to 41 in Block 49 on the tax duplicate of the municipality, assessed thereon to Mike Kassardo as owner, for unpaid taxes for the second half of 1933, sewer assessment, interest and costs amounting to a total of $223.59, after which the collector, under date of June 28, 1935, executed and issued to Borough of Highland Park certificate of tax sale for said premises subject only to municipal liens accruing after July 1, 1934 and subject to redemption on repayment of the amount of the sale together with interest at the rate of 8% per annum. Said tax sale certificate was recorded in the clerk's office of Middlesex County May 6, 1952 in Book 1126 of Mortgages, page 464.
By an assignment in writing, executed by the Mayor and Clerk of the Borough of Highland Park, the said borough assigned said tax sale certificate to Angelo Parlo in consideration of the sum of $500 paid by Parlo to the borough, which assignment bears date December 26, 1951 and was recorded in said county clerk's office May 6, 1952 in Book 111 of Assignments of Mortgages at page 410. The assignment is absolute in form, subject only to the right of redemption by the owner and reads in part as follows:
"* * * has granted, bargained, sold, assigned, transferred and set over, and by these presents does grant, bargain, sell, assign, transfer and set over, unto the party of the second part, a certain Tax Sale Certificate, * * *.
To have and to hold the same unto the party of the second part, his heirs, executors, administrators and assigns forever, subject only to the right of redemption of the owner as provided by law. And the Borough of Highland Park hereby makes, constitutes and appoints the said party of the second part its true and lawful attorney irrevocable, in its name or otherwise, but at his proper costs and charges, to have, use and take all lawful ways and means for the recovery of all the said money and interest and in case of payment to discharge the same as fully as the Borough of Highland Park might on could do if these presents were not made."
Said certificate of tax sale was delivered by the borough to Parlo along with the assignment.
Said property was assessed for the year 1951 at $500. The amount of assessment for other years does not appear. For the year 1951 the total taxes against said property amounted to $37.10. After purchasing said tax sale certificate, Parlo paid to the borough the last half of 1950 taxes and all of 1951 taxes assessed against said lots in the total sum of $71.70. Why he should have paid half of 1950 taxes and all of 1951 taxes, in addition to paying for the tax sale certificate, does not appear.
May 14, 1952 Parlo filed complaint in the Chancery Division of the Superior Court joining Doris L. Van Horn and the State of New Jersey as defendants, in which plaintiff sought to foreclose the equity of redemption in said lots. Doris L. Van Horn was joined as a defendant as owner of the property and the State of New Jersey was made a defendant by reason of a possible inheritance tax lien accruing upon the death of a former owner of the property.
May 16, 1952 the defendant Doris L. Van Horn, or some one in her behalf, paid to the collector of taxes the sum of $1,436.48 for redemption of the tax sale certificate and the amount due thereon. A dispute arose between the plaintiff Parlo and the borough as to who was entitled to the money, Parlo claiming the full amount thereof and refusing to turn in the tax sale certificate unless the amount paid was delivered to him, and the borough claiming that he was entitled only to the $500 he originally paid for the certificate.
July 21, Parlo filed an amended complaint setting forth the fact of the payment to the collector of the borough of the said sum of $1,436.48 in redemption of said tax sale certificate, including subsequent taxes and municipal liens and interest thereon, but not including plaintiff's costs of the suit; claiming the full amount thereof was due to him together with costs of suit and demanding, in the alternative, judgment directing the defendant borough to pay the plaintiff the monies so received in redemption of said tax sale certificate.
July 29, 1952 a consent order was entered dismissing the defendant Doris L. Van Horn as a party defendant and leaving only the borough and the State of New Jersey as parties defendant.
October 15, 1952 the defendant borough filed an answer to the amended complaint and a counterclaim for interpleader. In the counterclaim the borough demands judgment as to what disposition the borough shall make of the payment of $1,436.48 received by the tax collector in redemption of said tax sale certificate; whether the plaintiff Parlo is obliged to cancel or assign the tax sale certificate to the defendant Van Horn; what portion of the sum of $1,436.48 paid in redemption is to be retained by the borough and what portion the borough should be directed to pay to the plaintiff Parlo.
While the plaintiff filed no formal answer to the counterclaim, it was stipulated at the pretrial conference that it will be considered that plaintiff filed a formal answer in which he joins in the demand for judgment determining the proper disposition of the said fund of $1,436.48 as between himself and the defendant borough.
It is further stipulated in the pretrial order that inasmuch as Doris L. Van Horn, the record owner, had been dismissed as a party defendant, the plaintiff abandons that part of the ...