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Township of Lakewood v. 251

Decided: February 7, 1958.


Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.


[48 NJSuper Page 584] Defendant Edward M. Rothstein appeals from an order of the Superior Court, Chancery Division, denying his motion to declare void a final tax foreclosure judgment and permit him to redeem, and granting plaintiff permission to amend the judgment by adding a description of the premises involved. The case is before

us on an agreed statement in lieu of record. R.R. 1:6-2; R.R. 2:6.

The premises were owned prior to September 16, 1925 by Lakewood Pines Development Co. On that date the lands were conveyed to the Pines Development Corporation, but the property remained assessed in the name of the grantor. On September 19, 1956 plaintiff township filed its complaint under the In Rem Tax Foreclosure Act, N.J.S.A. 54:5-104.29 et seq. , to foreclose its three tax sale certificates covering the premises and recorded in the county clerk's office on the previous July 31. The cause proceeded to final judgment on December 14, 1956. On November 14, 1956, just less than two months after the filing of the complaint and one month prior to the entry of final judgment, defendant Rothstein, an attorney and counsellor at law of this State, acquired title to the premises by deed from the record owner of the property, the Pines Development Corporation. Plaintiff advertised the premises for public sale to be held on May 16, 1957 at 8 P.M. Rothstein had no actual knowledge of the foreclosure proceedings until May 15, 1957, one day before the advertised sale, when he unsuccessfully sought to redeem the premises. He admitted at the oral argument that a tax search before acquisition of the title would have disclosed the unpaid taxes, and led to information that the tax sale certificates were held by the township, and ultimately concerning the impending sale.

On June 10, 1957 Rothstein filed a notice of motion to redeem on the ground that the final judgment was void and that he had a right to redeem. At the hearing the plaintiff township moved to amend the final judgment to comply with R.R. 4:82-7(i) by adding the description of the premises as contained in the complaint and tax foreclosure list. The court denied Rothstein's motion and granted plaintiff's. In the order entered on these motions, and which is the order under review, the court declared

"* * * that the irregularities averred by the defendant were not of such character as would provide sufficient ground for the

vacating and setting aside of the In Rem Foreclosure judgment, and that the nature of the irregularities that may exist in this proceeding are such as may be remedied by an amended judgment."

The parties in their agreed statement in lieu of record have limited the appeal to a single ultimate question, namely, "Does Edward M. Rothstein have the right to redeem the premises in question from the three tax sale certificates above mentioned"? We limit our attention to this question.

The In Rem Tax Foreclosure Act (1948), N.J.S.A. 54:5-104.29 et seq. , applicable to tax sale certificates held by municipalities, can only be invoked after four years of nonpayment of general land taxes and two years after the date of the tax sale. The Legislature has declared that: "This act shall be liberally construed as remedial legislation to encourage the barring of rights of redemption * * *," and the courts have construed the statute as one designed to expedite the foreclosure of tax liens and in favor of the municipality. City of Newark v. Yeskel , 6 N.J. Super. 434 (Ch. 1949), affirmed 5 N.J. 313 (1950); Teaneck Township v. Block 427, Lots 9-10 , 19 N.J. 386 (1955); Borough of Paramus v. Block 1527, Lots 1-2, Assessed to Ridgewood Park Estates , 42 N.J. Super. 369 (App. Div. 1956). In the instant case, there is no dispute as to the nonpayment of taxes for more than four years and that more than two years had expired from the date of the tax sale before the in rem tax foreclosure action was begun, as required by N.J.S.A. 54:5-104.34.

The statute, N.J.S.A. 54:5-104.67, provides that no application shall be entertained for reopening of the final judgment after the expiration of three months from the date of recording thereof in the office of the county recording officer, except upon the grounds of lack of jurisdiction or fraud in the conduct of the action. The final judgment having been entered December 14, 1956 and recorded in the Ocean County Clerk's Office December 27, 1956, Rothstein's application to reopen was not made within the three-month period, but almost six months after the recording

of the judgment. He relies upon R.R. 4:62-2, which allows a greater ...

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