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Borough of New Shrewsbury v. 4

Decided: April 18, 1962.


Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.


Herbert Harvey appeals from an order of the Chancery Division made on November 13, 1961, denying his motion to reopen a final judgment entered in favor of the plaintiff on June 16, 1961, in a tax foreclosure proceeding brought by the borough pursuant to the In Rem Tax Foreclosure Act, N.J.S.A. 54:5-104.29 et seq. Harvey's motion, notice of which was served on October 13, 1961, was denied on the ground that it was out of time under N.J.S.A. 54:5-104.67 and R.R. 4:62-2.

On April 12, 1961 plaintiff filed its complaint, in which it sought foreclosure of several tax sale certificates, including one covering Block 115, Lot 4, assessed to William Hathaway.

On June 7, 1961 plaintiff's tax collector executed an affidavit of nonredemption. The attorney handling the foreclosure for the municipality sent this affidavit to the State Capitol Title and Abstract Company to be checked and, if found correct, to be filed, since a certificate of regularity was being sought from that company. The affidavit was returned by the company for the deletion of one of the parcels, not the subject property, because Mr. Harvey had filed an answer as to that lot, claiming an interest

therein and disputing the amount needed for redemption. The deletion of the one item was made and the affidavit, without re-execution so far as we are aware, together with a form of final judgment, was returned on June 13, 1961 to the aforesaid title and abstract company to be checked and filed. We do not pass on the propriety of modifying an affidavit without re-execution, but in view of our conclusion hereinafter leave that matter to the trial court. This affidavit was then filed on June 16, 1961 and on the same day judgment was entered in favor of the plaintiff as to the several certificates, including one affecting Block 115, Lot 4, but not as to the one covered by Harvey's answer.

On June 13, 1961 Herbert Harvey appeared at the office of plaintiff's tax collector, exhibited an unrecorded deed of that date from Elizabeth Green to Hudson Trading Corporation, stated that the deed covered Block 115, Lot 4, and stated that he wanted to redeem that lot because he held a mortgage from Hudson Trading Corporation which covered that property. An affidavit by Harvey asserts that Elizabeth Green had inherited the property by virtue of a devise by William Hathaway to Annie H. Green and by a devise from the latter to Elizabeth Green. Harvey tendered $600 in cash to the tax collector, the advertised amount to redeem being $506.89 besides fees and costs to be added. Thereupon, as the tax collector says in her affidavit, used in opposition to Harvey's motion:

"The last record owner of the property which was being foreclosed as shown on the tax books was William Hathaway. I did not know that an Elizabeth Green had any interest in the property. I did not know that the deed description covered the same property that was being foreclosed. I did not know -- be-yond his say-so -- that Herbert Harvey had any interest in the property, and frankly, from the manner of his approach, I couldn't help but think something might be amiss somewhere. I did know that the Borough would be entitled to an additional sum for fees and costs but I did not know how much at that time. I had been under instructions from Mr. Mausner, the Borough Attorney, in prior In Rem foreclosures, to be sure that if anyone tried to redeem any of the

parcels, not to accept any monies unless I was sure the person tendering the same had an interest in the property. For these reasons, I told Mr. Harvey that I would not accept any monies until I contacted Mr. Mausner. While Mr. Harvey was there, I attempted to do so, but was unable to reach him."

Later the same day, Harvey went to the office of Mr. Mausner, the borough attorney, but neither the attorney nor his secretary was there at that time. The foreclosure proceeding was actually being handled by one of Mr. Mausner's partners, Patrick J. McGann, Jr. Apparently, Mr. McGann mailed back the corrected affidavit on June 13, 1961 without knowledge of Harvey's attempt to redeem on that date. Harvey returned the next day, June 14, 1961, to the borough attorney's office and spoke to his secretary, in the absence of Mr. Mausner. He told her that he had made tender of payment the previous day at the tax office, showed her the cash and offered to make the payment then and there, but the secretary would not accept the money. He alleged in his affidavit that he exhibited to her the deed and his mortgage and asked her to communicate these circumstances immediately to Mr. Mausner so that they "would not enter judgment against the property on the theory that no redemption had been made."

The next day, June 15, 1961, Harvey wrote a letter to Mr. Mausner and therein confirmed his aforesaid efforts to redeem on June 13 at the tax collector's office and by attendance at Mr. Mausner's office on the two occasions. He furnished particulars in this letter as to his right to redeem by tracing the devolution of title from William Hathaway down to Elizabeth Green and her deed of June 13, 1961 to Hudson Trading Corporation, from whom he had acquired a mortgage, even giving the book and page in which the mortgage was recorded. That letter then stated:

"I am concerned, of course, to make this redemption and to bring the matter to your attention before you take any further steps to enter final judgment in your tax foreclosure, so that you can exclude Schedule #1 from your proceedings. Also I am ...

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