On appeal from Superior Court, Chancery Division, whose opinion is reported in 33 N.J. Super. 608.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Burling, J. Heher, J., concurring in result.
The controversy on this appeal involves the validity of a prior judgment of foreclosure in barring all rights of redemption in lands hereinafter referred to located within the Township of Teaneck in Bergen County.
The present action was instituted by the Township of Teaneck (hereinafter referred to as Teaneck) pursuant to the In Rem Tax Foreclosure Act, L. 1948, c. 96, sec. 1 et seq. (R.S. 54:5-104.29 et seq.), in the Superior Court, Chancery Division, to foreclose certain tax sale certificates of
which it was the owner. Upon a determination favorable to the answering defendant Herbert Harvey (hereinafter referred to as Harvey), Township of Teaneck v. Block 427, 33 N.J. Super. 608 (1955), an appeal was taken by Teaneck to the Superior Court, Appellate Division. Prior to hearing there this court certified the cause upon its own motion because of the general public importance of the issues raised.
The properties in question are known as lots 32, 33, 34 and 35 in block lettered "O" on "Map No. 2 of Knickerbocker Park, Teaneck Township, Bergen County, N.J." One Victor Mutt had acquired these properties by deed from the Knickerbocker Realty Company in 1928. On August 3, 1940 Mutt, by general warranty deed, conveyed to Mary Kuusik-Jackson "all those certain lots . . . known . . . as lots . . . (32) . . . (33) . . . (34) . . . (35) . . . in Block lettered S " (emphasis supplied) on the same map of Knickerbocker Park. Mutt, however, never owned the same numbered lots in Block "S."
In 1942 the properties were sold for tax arrearages and bought in by Teaneck, and in March 1952 the municipality instituted proceedings in the Superior Court, Chancery Division, to bar all rights of redemption therein pursuant to the In Rem Tax Foreclosure Act, supra. The complaint filed in that action named Mary Kuusik-Jackson as "the name of the person or one of the persons who, according to the records in the office of the county recording officer, appears as a transferee or purchaser of title to the land to be affected by the tax foreclosure proceedings," in accordance with R.S. 54:5-104.38(b), subsequently repealed by L. 1953, c. 51, and now embodied in R.R. 4:82-7(a)(2). The properties were designated in accordance with Teaneck's assessment map in the complaint, and the final decree used both the assessment map identification and the Knickerbocker Park development map description. A copy of the notice of foreclosure was mailed to Mary Kuusik-Jackson, but the lands were not redeemed and a final judgment was entered in November 1952 and later recorded in the Bergen County Clerk's office.
One year later Mary Kuusik-Jackson conveyed "lots . . . (32) . . . (33) . . . (34) . . . (35) . . . in Block lettered O
. . . being the same premises . . . intended to be . . . conveyed to Mary Kuusik-Jackson . . . by Victor Mutt . . . on August 23, 1940 . . ." to Herbert Harvey. (Emphasis supplied.) Thereafter, Harvey, proceeding on the assumption that the prior foreclosure was defective, addressed inquiries to Teaneck requesting he be allowed to redeem the properties. The invitation was declined.
Teaneck instituted the present action on May 13, 1954, seeking to foreclose all rights of redemption in a number of parcels, including the properties in question. Harvey thereupon tendered the amount necessary to redeem but this was refused. In the complaint it was set forth that Victor Mutt was the "name of the person * * * who, according to the records * * * appears as a transferee or purchaser of title to the land to be affected" in accordance with R.R. 4:82-7(a)(2) which had superseded R.S. 54:5-104.38(b). Harvey responded by answer and counterclaim, asserting ownership in the properties and demanding judgment allowing him to redeem. R.R. 4:82-7(f). Teaneck moved for summary judgment, relying upon the prior judgment to preclude the relief sought by Harvey's counterclaim. Harvey moved for judgment on the pleadings on the strength of his belief that the prior judgment was ineffective to vest title in the municipality. Teaneck, as a preliminary tactic, sought to have that portion of its complaint relating to the properties in question dismissed. The trial court denied this motion and the cause proceeded upon the pleadings, affidavits, and a factual stipulation.
The court below held the prior foreclosure to be defective because the "transferee or purchaser" of the property against which foreclosure was sought was not named in the petition. See R.S. 54:5-104.38(b) which was in effect at the time. Harvey, by virtue of the deed executed by Mary Kuusik-Jackson, was found to have acquired a sufficient interest in the lots to enable him to redeem. Judgment was entered accordingly and Teaneck pursued an appeal.
The questions to be determined in the disposition of this appeal are as follows:
1. Did the trial court err in denying Teaneck's motion for dismissal of that part of its complaint relating to the properties in question?
2. Is Harvey barred from attacking the prior foreclosure by virtue of R.S. 54:5-104.67 or the rules of this court?
3. Did R.S. 54:5-104.38(b), in effect at the time of the prior foreclosure (since repealed and now embodied in R.R. 4:82-7(a) (2), require the naming of the last ...