[94 NJSuper Page 470] Plaintiff City of Newark, sues under the In Rem Tax Foreclosure Act (N.J.S.A. 54:5-104.29 et seq.) to foreclose tax sale certificates covering several pieces of property. The defendants hold interests in the various parcels. Although they do not all set up the same defenses, the following contentions against the city's alleged rights to foreclosure judgments are found in the combined cases: that the In Rem Tax Foreclosure Act is
unconstitutional; if not unconstitutional, it is meant to apply only to vacant land; and even if the statute is applicable to this case, foreclosure is barred, first because excessive interest charges by the city taint its foreclosure action, and second because defendants made a valid tender of redemption and thus can invoke N.J.S.A. 54:5-104.34(b). There is also a contention that plaintiff did not meet the requirements of R.R. 4:82-7(d) when it posted notices. Some defendants in their pleadings raised an issue as to whether the city has or is taking their property without due compensation, claiming that the city, by declaring land blighted under N.J.S.A. 40:55-21.6, caused defendants' tenants to abandon the property which then became blighted in fact. This issue was not pursued at trial, however, and therefore need not be considered here.
Defendants' assertions that the In Rem Tax Foreclosure Act is unconstitutional were disposed of when, 17 years ago, the act was upheld. City of Newark v. Yeskel, 5 N.J. 313 (1950). There defendant Yeskel had contracted to buy property from the city but refused to perform, claiming that the city could not convey marketable title because whatever ownership it had was based upon a foreclosure under the In Rem Tax Foreclosure Act. Defendant contended that the act was unconstitutional and, therefore, the city's title was defective. In upholding the act the court said:
"It must be observed that a tax proceeding is not a suit between parties but is the exercise of the sovereign's prerogative power to tax. The state is the one party; the property the other. The doctrine to be evolved from the cases is that where the owner of property is given a right to redeem by statute and has had the opportunity to contest the assessment, the extinguishment of his rights in the property, either by the tax sale itself or by subsequent proceedings, may be accomplished by a strict adherence to the enabling statute which may limit the notice to be given of the proposed action to bar the right of redemption to posting or publication or no notice other than the statute
itself, and any of said forms of notice shall be sufficient to satisfy the requirements of constitutional due process both as to residents and nonresidents." (at p. 323)
"A consideration of the notice prescribed by L. 1948, c. 96 (N.J.S.A. 54:5-104.29 et seq.) in the light of the prescribed notice and opportunities for hearing and appeal incident to the assessment of the tax, and the prescribed notices incident to the tax sale itself, result in the inescapable conclusion that the statute under attack clearly meets the requirements of constitutional due process as delineated in the numerous decisions of the Supreme Court of the United States and of the various state courts in which the question has been passed upon." (at p. 327)
Defendants' argument that the In Rem Tax Foreclosure Act applies only to vacant or abandoned land is not persuasive. To support their argument, they rely on statements from the First Report of the Commission on State Tax Policy. The statements of the Commission quoted in defendants' brief are to the effect that the procedure under the In Rem Tax Foreclosure Act is particularly suited to property of small value or where the owners are unknown. The quoted passages do not state, however, that in rem procedure should not be applied to occupied land. More important, the words of the statute in no way indicate it is applicable only to vacant or abandoned land. N.J.S.A. 54:5-104.35, which empowers the municipality to foreclose tax certificates by a summary proceeding states:
"The governing body of any municipality may, from time to time, determine, by resolution, to foreclose any of the tax sale certificates held by it, by the summary proceedings In Rem provided by this act. Such resolution shall list the lands against which such proceedings shall be instituted."
The word "lands" indicates the subject matter of an in rem proceeding and is defined in N.J.S.A. 54:5-104.30, which provides:
"(d) 'Land' or 'lands' shall mean and include all real property."
This definition would seem to dispose of the defendants' contention that the act applies ...