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Peluso v. Township of Ocean

Decided: October 26, 1964.


Conford, Kilkenny and Lewis. The opinion of the court was delivered by Conford, S.j.a.d.


This is a suit instituted in the Chancery Division to compel the conveyance by defendant to plaintiff of certain lots which he claimed to own. The action seeks, in effect, the nullification of a judgment entered in defendant's favor in an in rem tax foreclosure proceeding affecting the property, plaintiff asserting he relied upon a tax search certificate issued to him at his request shortly before the institution of the foreclosure indicating no taxes were owing on the lots. From a judgment for defendant, based primarily on grounds of statute of limitations and laches, plaintiff appeals.

Because of the incompleteness of the statement of the respective parties' positions at the pretrial conference and of the presentation of the facts at the trial, which did not involve the taking of testimony, but was largely based upon stipulations and assertions by counsel, it remained unclear at the argument before us whether or to what extent any taxes were ever assessed on the properties in question or as to what, if assessed, the arrears amounted. As a result of inquiry by this court, however, enough information has now been elicited to permit the conclusions herein arrived at, and the court will exercise its original fact-finding jurisdiction to the extent indicated hereinafter.

The present controversy is confined to a group of some 277 lots; these are to be distinguished from another group which we shall designate as lots 7829-7859, inclusive, covered by the same tax foreclosure mentioned above but not now claimed by plaintiff. Plaintiff acquired title to both groups of lots February 6, 1934. It does not appear whether he made any official inquiry concerning tax arrears or liens thereon at the time, or whether he conducted a title search before taking title to the

property. It is agreed as a fact that he has never paid any taxes on any of the lots at any time. It is also the remarkable fact that after 1932 no tax assessment was ever made on the 277 lots (or, so far as we are aware, on the others, except for 1935; see infra) nor were any tax bills submitted to the owners.

It is unquestionably a fact that the 277 lots and lots 7829-7859 were assessed, apparently as a unit, in amounts which called for a tax payment of $81.64 for the tax year 1928. A verified copy of the page of the 1928 tax duplicate of the taxing district showing the assessments on the lots is before us. Plaintiff concedes it is a genuine copy of the original. We therefore accept it as proof of the fact of the 1928 assessment of the lots. The municipal tax collector deposes by affidavit that the lots were also assessed individually for the tax years 1929-1932, inclusive, but plaintiff challenges the adequacy of the proof of those facts before us although he does not controvert them. This will, however, be immaterial in the light of our conclusions.

On November 14, 1929 defendant purchased at a tax sale for unpaid 1928 taxes conducted by its collector all the property which has been mentioned above. The tax sale certificate, bearing number 1992, a photostatic copy of which is before us, recites a sale for 1928 taxes of $81.64 and miscellaneous costs, or an aggregate due of $91.48. This certificate was recorded in the lien records of the office of the Monmouth County Clerk January 2, 1930. Plaintiff concedes the authenticity of the copy of the certificate before us.

In December 1954 plaintiff through his attorney ordered an official tax search of all the lots referred to, and the official tax search officer of the municipality, who was also its collector, submitted to him two separate certificates, dated December 19, 1954, for which the fees were duly paid. One of these, covering the 277 lots, recited, under the form heading, "Taxes," the following: "Not Assessed. No Taxes on any of the above lots." There was a blank space under the form heading, "Tax Sales." The other certificate, covering lots

7829-7859, indicated open taxes for each of the years 1929-1932, inclusive, aggregating $426.65, and 1935 taxes of 12 cents. There was also indicated thereon a tax sale for 1922-1928 taxes, the amount due shown as $93.39, the date of sale November 14, 1929 and the certificate number 1992, with the notation "not recorded." Plaintiff did not then or at any time pay the items shown due on lots 7829-7859.

On March 28, 1955 defendant filed its complaint in the Superior Court for the foreclosure of all the lots mentioned, pursuant to the In Rem Tax Foreclosure Act (1948), L. 1948, c. 96 (N.J.S.A. 54:5-104.29 et seq.). Judgment vesting title in the defendant free from any right, title or claim of anyone else was entered in the proceedings July 6, 1955. Plaintiff was not, as he was not required to have been under the statute, served with personal notice of the proceedings. See City of Newark v. Yeskel , 5 N.J. 313 (1950). It was submitted by counsel on his behalf at the trial that he had no actual knowledge of the foreclosure until about July 20, 1961. (He does not contend that the constructive notice provisions of R.R. 4:82-7 were not complied with in the in rem proceedings.) At that time he received three notices of small tax delinquencies on other properties in Ocean Township, and it is asserted that in consulting the tax collector about them he learned for the first time of the tax foreclosure. The complaint in the present action was filed December 22, 1962. Why not before then is not explained in this record or the appellate briefs.

Although plaintiff in his brief argued that the in rem foreclosure proceedings were void because not founded on the jurisdictional requisite of a tax sale certificate based on taxes duly assessed and unpaid, that position must be rejected on the basis of the satisfactory post-argument demonstration to the contrary.*fn1 The 277 lots were ...

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