For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J.
This case involves a dispute over the title to some 447 acres of land in the Borough of Carlstadt (Borough).
Municipal taxes were levied and assessed against the lands here involved by the Borough. It became the purchaser of a number of tax sale certificates at several sales for nonpayment of these taxes. On December 31, 1947, the Borough undertook a strict foreclosure action of the certificates in the then Court of Chancery, which eventuated in a final judgment entered February 9, 1949. The State of New Jersey was not a party to those proceedings. The lands were sold by the Borough to Plank Development Corporation (Plank) on August 17, 1949. Hiram Blauvelt became vested with title through conveyances by Plank in 1951 and 1953. At the request of Plank the Borough filed a complaint on October 1, 1957 under the In Rem Foreclosure Act for reforeclosure. N.J.S.A. 54:5-104.72 to 104.74. Notice of that suit was sent to the Attorney General on November 20, 1957 (N.J.S.A. 54:5-104.43) and received by him on November 21, 1957. The State entered no appearance in the proceedings.
Final judgment was entered January 17, 1958, providing in part:
"* * * all persons having a vested or contingent title or interest in or lien or claim upon or against said lands, including the State of New Jersey and any agency and political subdivision thereof, * * * be barred of the right of redemption and be foreclosed of all prior or subsequent alienations and descents of said lands and encumbrances therein, and that an absolute and indefeasible estate of inheritance in fee simple in said lands be vested in Hiram B. D. Blauvelt, his heirs, representatives and assigns, * * *."
Thereafter, by mesne conveyances, plaintiff became vested with title by deed dated February 4, 1963.
On January 2, 1963, upon plaintiff's application, defendant leased the lands to it. The lease contained the following proviso:
"* * * provided, that if during the term of fifteen (15) years, portions of the lands hereinabove described are determined either by mutual agreement or by final judgment of a Court of competent jurisdiction not to be owned by the State, then as to such portions this lease shall be revised and modified to the end that the annual rentals shall be reduced * * *."
Plaintiff thereafter filed the present action in the Law Division, designated in the complaint as a "Declaratory Judgment Action." The demand in said complaint reads:
"Wherefore, plaintiff demands that this Court construe the lease referred to in paragraphs 11 and 12 of this complaint, and the said foreclosure and In Rem Reforeclosure actions and the judgments respectively entered therein * * * and construe the statutes and any judgments rendered thereunder insofar as they affect the title of the State of New Jersey and determine and declare that the State of New Jersey has no vested or contingent title or interest in said lands by reason of said lands being under tidewater."
Defendant filed an answer containing nine separate defenses. Included was the plea that
"The lands described in the lease are the property of the State of New Jersey by virtue of being tidelands, and the judgment of foreclosure and reforeclosure as alleged in the complaint cannot serve to deprive the State as the owner of the paramount title."
Paraphrased, the defendant alleged that where it has paramount title the State has not waived its immunity from suit in the In Rem action.
Plaintiff's motion for summary judgment was denied. That motion sought an adjudication that the judgment in the In Rem reforeclosure was binding on the State and extinguished whatever interest the State might have had in said lands, including its paramount title based on the lands' being tideflowed.
The Appellate Division granted plaintiff's motion for leave to appeal, and this court certified the case on its own motion prior to argument there.
The basic issue projected by the briefs is whether the State of New Jersey, by virtue of the In Rem Act, N.J.S.A.
54:5-104.29 et seq., waived its sovereign immunity to suit where it has a proprietary interest in the lands being foreclosed. A corollary question is whether the above judgment extinguished whatever title the State had to such lands.
Plaintiff bottoms its argument that the State did so waive its immunity upon four sections of the In Rem Act, N.J.S.A. ...