Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
The present appeal involves the Tax Act of 1903 (c. 208), long a source of litigation and still exhibiting a flicker of life despite legislative interment in 1930. L. 1930, c. 37, p. 202, repealing §§ 1 to 26, 32 to 60. Plaintiff relied upon that act in bringing his quiet title action in the Chancery Division. He appeals from the final judgment entered in defendants' favor.
The action was prosecuted pursuant to N.J.S. 2 A:62-1 et seq. It was determined on defendants' motion for summary judgment, on the basis of the pleadings, the stipulations in the pretrial order, oral stipulations and affidavits. These reveal the following factual setting:
On May 3, 1919 the Collector of Taxes of Pequannock Township, Morris County, sold to plaintiff the premises in question, assessed in the name of Walter H. Mead, as owner, for taxes due for the years 1915 to 1918 inclusive. Although the certificate of tax sale describes the premises as comprising 13 acres, it is agreed that only 2.25 acres along Brook Valley Road in the township were involved. The certificate states that the property was "struck off and sold to Roy DeBow for the term of 20 years, from the date of the sale, he, the said Roy DeBow, having bid and agreed to take the said real estate for the shortest term of years for which any person would take the same and pay the amount of taxes with the interest thereon and costs of sale." A tax sale on such terms was permitted by L. 1903, c. 208, § 52, p. 428. The certificate also recited, in conformance with the statute, that the right of the owner or any other person having either a legal or equitable interest in the property to redeem the same would expire on May 3, 1921. The tax collector delivered the certificate to plaintiff on May 13, 1919, and on July 2, 1919 plaintiff recorded it in the county clerk's office as a mortgage.
L. 1903, c. 208, § 56, p. 430. Thereafter, and on May 8, 1922 (five days after the time for redemption had expired), plaintiff recorded the certificate in the county clerk's office as a deed. Annexed to the certificate were the required search for tax and assessment liens, the tax collector's certificate of non-redemption, affidavit of publication of notice to redeem, and plaintiff's affidavit of posting of notice of redemption. This second recording of the certificate met the statutory requirements. L. 1903, c. 208, §§ 56 and 59, pp. 430 and 432.
It is undisputed that Walter H. Mead was the record owner of the premises at the time of the sale; that defendants are his heirs-at-law claiming to be seized and entitled to undivided interests in the premises in varying fractional parts; that immediately after plaintiff received his certificate of tax sale he entered into possession of the premises and has been in continuous and peaceable possession thereof ever since; that he used the property for general truck gardening, pastured his horse there, and frequently planted winter rye for harvesting in the following spring; and that he has paid all taxes assessed against the premises since entering into possession.
By his amended complaint, plaintiff claims that on May 8, 1922 the Pequannock Township tax collector "conveyed" the lands in question to him for a full and valuable consideration; that the conveyance was recorded as a "deed"; that he entered into possession in May 1919 and has "continuously and interruptedly and openly used and occupied" the lands and has cleared and improved them by tilling and cultivation; that his title is denied and disputed by defendants who claim to own the same or some part thereof; and, finally, that no suit is pending to enforce or test the validity of these claims.
Defendants by their answer deny the lands were "conveyed" to plaintiff, or that the recorded instrument is a deed, or that plaintiff has any title to, right to possession of, or legal interest in any of the lands described in the amended complaint. They set up their several interests and claim that any right which plaintiff had under his certificate of
tax sale expired May 3, 1939, since which time he has deprived them of their right to possession of the premises. In their answer -- and this should properly have been done by way of counterclaim -- defendants demand judgment that plaintiff has no right, title or interest in the lands in question and that their title is good and perfect.
The pretrial order set up three issues: (1) whether the interest which plaintiff acquired at the tax sale terminated on May 3, 1939 by reason of the limitation contained in the tax sale certificate; (2) whether his possession of the premises has been "adverse and hostile" since July 2, 1919 (the date the certificate was recorded as a mortgage); and (3) whether defendants, in the event that title is determined to be in them, may be required to reimburse plaintiff for taxes paid by him since 1919. On defendants' motion for summary judgment the court rendered an oral opinion holding that plaintiff had no right or interest in the premises, but that defendants' title was good and they were entitled to immediate possession. The court further held that defendants need not reimburse plaintiff for taxes he had paid. Final judgment was entered accordingly, and this appeal followed.
Plaintiff claims he was entitled to a judgment because he took possession of the land soon after receiving the tax sale certificate, recorded the certificate as a mortgage and then as a deed, used the land and enjoyed peaceable possession since the date of entry, paid all taxes, and claimed ownership. We do not agree that under the circumstances here ...