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Brewer v. Porch

Decided: January 20, 1969.

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



For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.

Haneman

The Chancery Division found that defendant had good title to certain realty and that plaintiffs had no right to redeem the land from a tax sale certificate or to other relief incidental thereto. 93 N.J. Super. 66 (Ch. Div. 1966). The Appellate Division affirmed the judgment 98 N.J. Super. 583 (App. Div 1968) and this Court granted plaintiffs' petition for certification. 51 N.J. 464 (1968).

In 1927, George B. Brewer, one of the plaintiffs, had title to the land in question, some 77 acres in Logan Township. In that year he conveyed to his mother, Sara H. Brewer, who died intestate on June 10, 1948. The plaintiffs in this action are her heirs. Although out of title, George Brewer leased a small portion of the property to defendant, who

farmed the same during 1936 and 1937. On August 7, 1937, the Tax Collector of Logan Township sold the land for nonpayment of taxes. There being no other purchaser, it was struck off and sold to the Township. In 1938 defendant leased the entire tract from the Township for approximately two years. In 1939 the Township sold and assigned the tax sale certificate to him upon his payment of the full amount of taxes, interest and costs then due the municipality. Defendant immediately entered into possession of practically all of the lands. He farmed practically the entire tract until 1960 when ill health forced him to discontinue his agricultural activities. Since 1961 he has leased the farm to Gordon Hurff who has continued to farm "all of it." Defendant took no action by way of notice under N.J.S.A. 54:5-77 et seq., or by way of action in the Chancery Division of the Superior Court, under N.J.S.A. 54:5-85 et seq., to foreclose plaintiffs' right of redemption.

On March 3, 1965, plaintiffs paid the Tax Collector of Logan Township, the amount required to redeem the lands from the above-mentioned tax sale. (N.J.S.A. 54:5-54) Defendant refused to accept the money so paid and to surrender the tax sale certificate. Plaintiffs then filed suit, demanding the cancellation of the tax sale certificate, recovery of the value of defendant's use of the land since 1938 and an accounting of the rents received by defendant therefrom. Defendant answered that the right of redemption was terminated and that he had obtained fee title by his entry into open possession under the sale, which possession continued for upwards of 20 years without redemption by plaintiffs. See N.J.S.A. 54:5-78. He therefore demanded judgment declaring that he had good title and that plaintiffs had no right of redemption. The trial court found for defendant and judgment was entered accordingly. The Appellate Division affirmed, as noted above.

Plaintiffs argue that the holder of a tax sale certificate cannot, by possession under the certificate, cut off a fee owner's right to redeem. Although plaintiffs admit that the

tax sale law at the time of the sale (L. 1918, c. 237, § 47) contained, and presently (N.J.S.A. 54:5-78) contains, a provision barring redemption where there has been "no redemption within twenty years after the purchaser has entered into open possession, since continued, under the sale," they argue that this provision was implicitly repealed when L. 1929, c. 169 deleted from § 34 of L. 1918, c. 237 (the predecessor of N.J.S.A. 54:5-50) the express grant of a right to possession to the holder of a recorded tax sale certificate. The pivotal question is whether L. 1929, c. 169 did implicitly repeal that portion of L. 1918, c. 237, § 47 (N.J.S.A. 54:5-78) which provided for the barring of an owner's right of redemption by 20 years open and continuous possession of the lands under the tax sale certificate. The answer lies in an ascertainment of the legislative intent in adopting L. 1929, c. 169.

At the outset it must be recognized that "municipal liens, and the rights arising therefrom, are solely statutory in origin and are fixed and determined by the statute." Dvorkin v. Dover Tp., 29 N.J. 303, 319 (1959); See also Nelson v. Naumowicz, 1 N.J. 300 (1949); Absecon Land Co. v. Keernes, 101 N.J. Eq. 227 (E. & A. 1927); Raritan Tp. v. Rotante, 92 N.J. Super. 319 (Ch. Div. 1966).

It must also be recognized that, in seeking to ascertain the legislative intent, it is essential that certain cardinal principles of statutory construction be kept in mind.

The first of these is that, ordinarily, implied repealers are not favored in the law. Swede v. City of Clifton, 22 N.J. 303 (1956); Goff v. Hunt, 6 N.J. 600 (1951); Loboda v. Clark Tp., 40 N.J. 424 (1963). However, when a later expression of legislative will is so clearly in conflict with an earlier statute on the same subject that the two cannot reasonably stand together, each in its own particular field, the courts will find a legislative intent to supersede the earlier law. The test is whether the two statutes are inconsistent or repugnant. Swede v. City of Clifton, supra; Montclair v. Stanoyevich, 6 N.J. 479 (1951); Two Guys from

Harrison, Inc. v. Furman, 32 N.J. 199, 223 (1960); Dept. of Labor v. Cruz, 45 N.J. 372 (1965).

Another principle is that, in seeking to discover the legislative intent, the statute must be read in the light of the old law, the mischief sought to be eliminated and the proposed remedy, Key Agency v. Continental Cas. Co., 31 N.J. 98, 103 (1959); San-Lan Builders, Inc. v. Baxendale, 28 N.J. 148 (1958), and to that end reference may be had to its history and purpose, State v. Brown, 22 N.J. 405 (1956). In order to ascertain the purpose, the preamble and statements attached to the bill which was enacted into the statute may be considered. Bass v. Allen Home Improvement Co., 8 N.J. 219 (1951). Acts in pari materia as well as related acts not strictly in pari materia, should be examined. Appeal of N.Y. State Realty & Terminal Co., 21 N.J. 90 (1956); State v. Brown, supra; Key Agency v. Continental Cas. Co., supra.

Yet another principle is the assumption that the Legislature is thoroughly conversant with its own legislation and the judicial construction of its statutes. Matawan Borough v. Monmouth Cty. Tax Bd., 51 N.J. 291 (1968); State v. Federanko, 26 N.J. 119 (1958); City of Newark v. Rockford Furniture Co., 4 N.J. Super. 205 (App. Div. 1949).

Where there are two contradictory provisions in a statute, the primary object is to ascertain the legislative design with reasonable certainty, and where the two, separated in point of time of enactment so that the earlier section was by implication repealed by the latter, are embodied in a revision of general laws, the re-enactment of the former is deemed an ...


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