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Brewer v. Porch

Decided: January 22, 1968.

GEORGE B. BREWER, SARA H. BREWER DOWNING, FREDERICK W. BREWER AND GERTRUDE BEE BREWER, PLAINTIFFS-APPELLANTS,
v.
ALONZO PORCH, DEFENDANT-RESPONDENT



Conford, Collester and Labrecque.

Per Curiam

The background circumstances and issues involved in this case have been stated adequately in the opinion rendered for the Chancery Division as reported in Brewer v. Porch, 93 N.J. Super. 66 (1966), and will not here be repeated.

We affirm the judgment rendered for the defendant in the Chancery Division but not entirely for the reasons given in the opinion referred to.

I

We refer first to plaintiffs' contention that the provision in N.J.S.A. 54:5-78 by which the owner's right of redemption

from a tax sale is barred if not exercised "within twenty years after the purchaser [at the tax sale] has entered into open possession, since continued, under the sale * * *" was impliedly repealed in 1929 by the Legislature. Reliance is had on the fact that at that time the source act of 1918 (chapter 237) was amended (L. 1929, c. 169) in respect of section 34 (now N.J.S.A. 54:5-50) to exscind the previous provision therein that the purchaser at a tax sale might take possession of the lands and receive the rents and profits thereof. It is argued that the failure of the Legislature at the same time also expressly to exscind that portion of section 47 of the source act (identified above as present N.J.S.A. 54:5-78), which bars the right of redemption after 20 years of "open possession" by the purchaser, was an oversight which should now be remedied by the judicial conclusion of implied repealer by operation of the 1929 legislative excision noted above. It is further stressed that the right of possession on the part of a tax sale purchaser was subsequently explicitly recognized by the Legislature, but only in favor of municipalities as such purchasers, and then only on the conditions that the certificate be recorded and that all rents and profits be credited against the amount due upon the tax sale certificate and subsequent taxes. N.J.S.A. 54:5-53.1 (L. 1942, c. 54).

There can be no doubt that under the tax foreclosure statutes as they now stand there is no affirmative statutory sanction for the entry into possession of a private purchaser of a tax sale certificate. Thus, such a purchaser is not entitled to a rent receiver as against a foreclosing mortgagee in possession, Forster v. Davenport, 128 N.J. Eq. 385 (Ch. 1940); nor to reimbursement by a redeeming owner for expenditures on repair of real estate if he does enter into possession, Nelson v. Naumowicz, 1 N.J. 300 (1949). Such an entering purchaser is, moreover, liable for use and occupation of the premises to a redeeming owner. Diamonde v. Berkeley Township, 142 N.J. Eq. 140 (Ch. 1948). But we are of the opinion, nevertheless, that the deletion of affirmative

authorization for entry into possession by a tax sale purchaser by L. 1929, c. 169, cannot properly be regarded as a basis to conclude that section 47 of L. 1918, c. 237 (N.J.S.A. 54:5-78) was thereby impliedly repealed.

Implied repealers are not favored in the law. Department of Labor and Industry v. Cruz, 45 N.J. 372 (1965). It has been stated that the legislative purpose to repeal by implication must be free from all reasonable doubt. Swede v. City of Clifton, 22 N.J. 303, 317 (1956). The present absence of an affirmative statutory basis for entry into possession by a private purchaser of a tax certificate is not necessarily inconsistent with an actual legislative intent that if such a purchaser enters and continues in open possession under the sale for 20 years while the holder of the right of redemption sits by and takes no steps to redeem, the right of redemption will be barred. There is the ready analogy of one having no right of possession being able to convert his originally wrongful act of taking possession into impregnable title by adverse possession if the ousted rightful owner takes no remedial action for the statutory period and the nature of the taking and continuation of possession of the usurper is of the legally requisite qualities. See Predham v. Holfester, 32 N.J. Super. 419, 427 (App. Div. 1954).

We therefore agree with the holding below that N.J.S.A. 54:5-78, never expressly repealed, continues in full force and effect, but do not approve anything in the opinion of the Chancery Division indicating that that conclusion is inconsistent with the holdings in Forster v. Davenport, supra, and the other cases cited above which follow it, as to the ...


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