This is an action for redemption of a tax sale certificate and a counterclaim to bar the right of redemption. The facts are as follows. Plaintiffs are the surviving heirs-at-law of one Sarah H. Brewer who died intestate June 10, 1948. The said Sarah H. Brewer held legal title to a tract of land consisting of approximately 77 1/2 acres and situate in the Township of Logan, Gloucester County, which land was sold at a tax sale in 1937 and there purchased by the Township of Logan. A tax sale certificate was issued to same.
Defendant, for several years prior to 1937, had leased a number of acres in the tract for farming purposes. Plaintiffs allege that defendant leased all of the lands and that he leased them from Sarah H. Brewer. From the evidence presented it appears that defendant leased only a small portion of the land and that the agreement was with one of the plaintiffs, George B. Brewer, a son of Sarah H. Brewer, though title was in Sarah H. Brewer's name.
After the tax sale in 1937 defendant leased the entire tract from the Logan Township Committee and paid the taxes thereon. The records of the township show that these payments were made by crediting rent owed to Sarah H. Brewer. However, the record seems clear that defendant never entered a lease agreement with Sarah H. Brewer, nor did he lease the lands from George B. Brewer after 1937. This, coupled with the fact that plaintiffs have failed to present any firm proof of such an agreement, leads this court to the conclusion that the notations on the record were due to an erroneous assumption of the entrant.
In 1939 defendant purchased the tax sale certificate from the township and continued to farm the land until 1960, at which time, due to failing health, he abandoned farming and leased the whole tract to a third party for the same purpose. Said third party is not involved in the suit. Defendant paid all taxes on the property up to and including 1964, at which point plaintiffs stepped in and on March 3, 1965 paid to the tax collector of Logan Township $11,916.08, representing the
taxes accrued from October 1939 up to and including February 1965, with interest of 6% and less certain deductions. Plaintiffs then demanded that defendant be informed that the tax sale certificate had been redeemed and that he should surrender same to the tax collector. Defendant refused and this suit was instituted.
Defendant counterclaims that, pursuant to N.J.S.A. 54:5-78, plaintiffs' right to redeem has been barred because he had maintained actual possession of the lands under the tax sale certificate for more than 20 years and prays this court to render a decree that the right of redemption is barred. Defendant also raises the defense of adverse possession and laches.
Plaintiffs first argue that N.J.S.A. 54:5-78 is inapplicable to the private purchaser and that the failure of the Legislature to so limit said section in explicit terms was mere inadvertence, and to support this position they cite the history of N.J.S.A. 54:5-50 which, prior to 1929, stated:
"The purchaser may record the certificate of sale in the office of the clerk or register of the county where the land lies as a mortgage of land, and thereupon shall be entitled to the immediate possession of the property sold and described in the certificate, and to all the rents and profits thereof. * * *" (L. 1918, c. 237, § 34)
In 1929 section 34 was amended by chapter 169, and the provision for immediate possession was removed. N.J.S.A. 54:5-50 is the present version of section 34 and reads:
"The purchaser may record the certificate of sale in the office of the clerk or register of deeds of the county in which the land is situate, as a mortgage of land. The register or county clerk, as the case may be, shall index the certificate in his index of mortgages in the name of the delinquent owner, as set forth in the certificate, and shall also index it in a separate block index, to be kept in his office, under the block and lot number as shown in the certificate, if the property is described by lot and block."
Plaintiffs contend that the removal of the clause granting the right to possession, coupled with N.J.S.A. 54:5-53.1,
which expressly gives said right to a municipality purchasing at a tax sale, is an implied repealer of N.J.S.A. 54:5-78 insofar as it gives the right of possession to a private purchaser.
Nor do plaintiffs stand alone in this contention, as witnessed by the numerous cases cited in their brief. In Forster v. Davenport, 128 N.J. Eq. 385 (Ch. 1940), Vice-Chancellor Stein, after a lengthy discussion of section 34 and the ...