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Lipman v. Shriver

Decided: July 2, 1958.

EDWARD VOORHEES LIPMAN AND GARDINA ARMSTRONG LIPMAN, HIS WIFE, PLAINTIFFS,
v.
ELIZABETH SHRIVER, COLLECTOR OF TAXES OF THE TOWNSHIP OF BERKELEY, IN THE COUNTY OF OCEAN AND STATE OF NEW JERSEY, AND FREDERICK E. SCAMMELL, DEFENDANTS



Knight, J.s.c.

Knight

The plaintiffs move for a summary judgment under R.R. 4:88-4 seeking a judgment in their favor on the demands set forth in the complaint, and the defendants move for a summary judgment on the ground that upon the facts and the law the plaintiffs are not entitled to the relief they seek.

The facts are undisputed and appear fully in the complaint. The plaintiffs own a tract of land, hereinafter referred to as the dominant estate, with an easement appurtenant to dam or draw water from or flow with water any part of the servient estate (which is the subject matter of this litigation). The defendant Scammell is the owner of two tax sale certificates covering the servient estate which he purchased on November 16, 1954 at a public sale of lands for unpaid municipal tax liens, and the defendant Shriver is the collector of taxes of the Township of Berkeley.

The complaint demands judgment directing the defendant Shriver to issue a statement to the plaintiffs showing the amount needed to redeem the property in question and to allow the plaintiffs to redeem the same for that amount under R.S. 54:5-54. The plaintiffs also seek an order directing the defendant Scammell to assign the said tax sale certificates to the plaintiffs in compliance with R.S. 54:5-56.

The issue which is the crux of this case is: Can the plaintiffs redeem the land in question under the authority of R.S. 54:5-54? The pertinent provision of this statute reads as follows:

"The owner, mortgagee, occupant or other person having an interest in land sold for municipal liens, may redeem it * * *."

Plaintiffs claim that their interest in this land, namely as holders of an easement therein, brings them within the clause "other person having an interest in land," and entitles them to redeem. In Kerr v. Trescher , 34 N.J. Super. 437 (Ch. Div. 1955), the court, in referring to R.S. 54:5, said that "The intention must be gathered from the spirit and policy of the statute rather than from the literal sense of

particular terms." It is necessary, therefore, to determine what interests or kinds of interests entitle the owner thereof to redeem under R.S. 54:5-54. The right to redeem has been accorded to a legal occupant of land, Hannold v. Cundey , 131 N.J.L. 87 (Sup. Ct. 1944); a widow with a right of quarantine Morvay v. Gressman , 29 N.J. Super. 508 (App. Div. 1954); and a holder of an unenforceable mortgage, Lake Waterloo Corp. v. Kestenbaum , 10 N.J. 525 (1952). In Taylor v. Borgfeld , 139 N.J. Eq. 177 (Ch. 1947) the court said:

"It is transpicuous that the authority to redeem is bestowed upon an owner to permit him to restore his title; upon a mortgagee for the protection of his lien; upon a tenant for the preservation of his leasehold estate; and upon others for the possible endurance of their existing legal interests in the land." (Emphasis supplied)

On the other hand, in Niestat v. Equitable Security Co. , 138 N.J. Eq. 480 (Ch. 1946), it was held that the holder of an easement could not redeem since it would not be destroyed by foreclosure of the tax sale certificate.

It seems evident from the case law on the subject that the true criteria to be used in deciding what interests are encompassed by the phrase "other person having an interest in land" is whether a subsequent foreclosure will cut off that interest. If it would be cut off then the holder thereof has a right to redeem under R.S. 54:5-54, whereas if the interest would not be cut off by a subsequent foreclosure then the holder thereof has no right, nor indeed no necessity, to have the right to redeem to protect that interest.

Whether or not an easement appurtenant to the dominant estate will be cut off by foreclosure of a tax sale certificate covering the servient estate depends upon the effect given to and the method of assessment itself. Under R.S. 54:5-6 all taxes on lands "* * * shall be a lien on the land on which they are assessed * * *." The assessment is to be on all real property ...


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