In this in rem tax foreclosure action defendant Herbert Harvey, claiming to be a mortgagee of the properties included in Schedule 7, has moved for a dismissal of the action as to that schedule on the ground that payment of some part of the taxes assessed against the property had been made within four calendar years next preceding the commencement of the action. Defendant Dorothy De Hamidian joins in the motion to dismiss. She seeks, however, to reserve to herself the right to move on the same ground at a later time to dismiss the complaint as to her. In view of the fact that matters outside the pleadings have been relied upon, the motion will be treated as a motion for summary judgment.
The plaintiff seeks to foreclose a certificate of tax sale held November 5, 1964. The complaint was filed June 4, 1968 alleging that no part of any general land tax levied or assessed against the land had been paid for four calendar years next preceding the date of the filing of the complaint, and that no part of the general land tax levied and assessed against the land for the year 1968 had been paid.
It is admitted by plaintiff that it received payments in the years 1964, 1965 and 1966 of taxes due prior to June 30, 1963. Such payments were made pursuant to an order dated May 10, 1963 in a prior foreclosure suit bearing Docket No. F -3433-60 involving the same property. That order provided that the premises in question could be redeemed by the payment to the borough by the record owner or his agent of $6,500 "agreed upon by the parties as the sum due and owing to the Borough to June 30, 1963 * * *." The order further provided that the payments were to be made:
$1,700 on or before June 1, 1963
$1,600 on or before May 1, 1964
$1,600 on or before May 1, 1965
$1,600 on or before May 1, 1966
No other tax payments were received. No part of the taxes assessed for the second half of 1963, 1964, 1965, 1966, 1967 and 1968 have been paid.
Initially, Harvey objects to the consideration by the court of an affidavit submitted by plaintiff incorporating the fact that the payments made as above set forth were made as a result of a prior order of this court for taxes that accrued before June 30, 1963. The basis for his objection is that the certificate of tax sale involved in this action states, "Sale is subject only to municipal liens accruing after December 31, 1963," and that evidence should not be received to rebut the statutory presumption that such was an accurate statement.
"The certificate of sale shall be presumptive evidence in all courts in all proceedings by and against the purchaser, his representatives, heirs, and assigns, of the truth of the statements therein, of the title of the purchaser to the land therein described, and the regularity and validity of all proceedings had in reference to the sale. After two years from the record of the certificate of sale, no evidence shall be admitted in any court to rebut the presumption, unless ...