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Iorio v. Rothenbach

Decided: December 21, 1955.

FRANK L. IORIO AND MARY A. IORIO, HIS WIFE, PLAINTIFFS,
v.
HENRY ROTHENBACH, DEFENDANT



Grimshaw, J.s.c.

Grimshaw

Plaintiffs sue for the cancellation of a contract for the sale of real property. Charging that defendant's title is unmarketable, plaintiffs seek the return of their deposit and damages of $221.26 representing the cost of an examination of the title to the premises. Defendant, asserting his willingness to convey the property in accordance with terms of the contract insists that the title is marketable.

The undisputed facts are as follows:

On July 24, 1954, by written contract of that date, the plaintiffs agreed to purchase from the defendant lots 160 to 164, both inclusive, in Block 97 as shown on the assessment map of the Borough of Emerson. Lots 162, 163 and 164 in Block 97 were conveyed to the defendant by the Borough of Emerson by deed dated December 9, 1947.

On February 8, 1919 the Borough of Emerson had purchased a tax certificate covering lots 162, 163 and 164 in Block 97. On July 30, 1943 the borough filed a bill to foreclose the tax certificate. A final decree was entered on November 22, 1943.

At the time of the tax sale the pertinent statute was as follows:

"The title of a purchaser at a sale shall cease and determine and the certificate of sale shall be void at the expiration of twenty years from the date of the sale, unless the purchaser, his heirs or assigns shall, before the expiration of that term, enter into actual possession of the land purchased, or foreclose the right to redeem it by notice or by proceedings in equity and record the evidence thereof, as provided in this chapter." R.S. 54:5-79.

Under the provisions of that section of the statute the title of the Borough of Emerson to lots 162, 163 and 164 in Block 97, acquired at the tax sale of February 8, 1919, ceased, and the right to foreclose the right of redemption became barred on February 8, 1939.

In 1942 the Legislature amended R.S. 54:5-79 to read as follows:

"The title of a purchaser other than a municipality at a sale shall cease and determine and the certificate of sale shall be void at the expiration of twenty years from the date of the sale, unless the purchaser, his heirs or assigns shall, before the expiration of that term, enter into actual possession of the land purchased, or foreclose the right to redeem it by notice or by proceedings in equity and record the evidence thereof, as provided in this chapter.

This act shall extend to all present, existing tax certificates held by a municipality whose ...


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