On December 12, 1955 defendant township sold certain premises to plaintiff at a public tax sale for taxes due for the years 1952, 1953 and 1954, for the sum of $1,987.94, which included a premium of $1,555; and thereafter plaintiff paid subsequent taxes amounting to $595.53. The premises sold were described on the tax duplicate and in the certificate as "595 acres of brushland at Warren Grove adjoining Burlington and Ocean County lines," assessed to Le Claire Nursery.
By stipulation it develops that the lands assessed and covered by the certificate were conveyed to the United States of America in 1949, and have been so owned ever since. The unpaid taxes for which the premises were sold were for years after 1949.
Plaintiff seeks the return of moneys paid at the tax sale and for subsequent years' taxes, with interest, upon the basis that the lands were not assessable and the tax sale
was thereby void. Defendant contends that at the tax sale no warranties of title were expressed or implied, and that in the absence of fraud a purchaser is without remedy against the municipality at either law or in equity.
Plaintiff relies upon R.S. 54:5-43, which reads as follows:
"If the assessment itself is valid and the tax, assessment or other municipal charge, or any part thereof, is justly due, no sale shall be set aside, except on condition that the amount due shall be paid to the municipality for the use of the holder of the certificate of sale by the person applying to set it aside. If the sale shall be set aside the municipality shall refund to the purchaser the price paid by him on the sale, with lawful interest, upon his assigning to the municipality the certificate of sale and all his interest in the tax, assessment or other charges and in the municipal lien therefor, and the municipality may readvertise and sell if the municipal lien remains in force."
Defendant relies upon the case of Manor Real Estate & Trust Co. v. City of Linden , 8 N.J. Super. 114 (App. Div. 1950), which involved the assignment of two tax liens covering property which had after the tax sale been sold to the State of New Jersey and suit was to recover the monies paid for the assignments. There Judge Colie said, at pages 116-117:
"There was neither a mutual mistake of fact nor a breach of an implied warranty, merely a failure to appreciate the legal effect of the assignments. The general rule is that the holder of a tax certificate may not be reimbursed by the taxing authority in the absence of statute giving that right. In Casselbury v. Inhabitants of Township of Piscataway , 43 N.J.L. 353 (Sup. Ct. 1881), it was held in a case in which there was illegality in the method of procedure that the municipality was under no obligation to refund the purchase money because the tax title failed. In Tooker v. Roe , 44 N.J.L. 591 (Sup. Ct. 1882), a case in all essentials comparable to the present one, the court said: '"Purchasers frequently accept deeds by which no title is conveyed, under a misapprehension of the law. When there is no mistake or misrepresentation as to the facts, and no fraud and no warranty of title, they have no redress at law or in equity."'
Rights and liabilities under tax sale proceedings rest upon the statute. Nelson v. Naumowicz , 1 N.J. 300 (Sup. Ct. 1949). The plaintiff misconceives the nature of the assignments which it purchased.
The instruments purported to assign just what the municipality bought in 1932 and 1933 and no more. We think the language in Cook v. Weigley , 67 N.J. Eq. 716, at page 721 (E. & A. 1904), as there applied to a deed with no covenant of title is applicable to the assignments in this case. We quote: 'the purchaser who has received no covenants which cover a defect or encumbrance, can neither retain the purchase money nor recover it back if already paid. Unless ...