For reversal -- 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.
Plaintiff recovered a judgment for rent in the Law Division. Upon defendant's appeal, the Appellate Division affirmed in an unreported opinion. This Court granted certification upon defendant's petition. 52 N.J. 487 (1968).
Defendant owns and operates a park for house trailers in the Borough of Moonachie on lands designated Plot 1 in Block 132 on the municipal tax map. In 1962, before taking title to adjacent lands, i.e., Plot 1 in Block 134, plaintiff obtained a survey which showed that defendant had parked an unspecified number of trailers over its easterly line on property plaintiff was about to acquire. After several conferences, the parties signed the following letter:
Upon your taking title to the property adjacent to our trailer camp we hereby agree to rent space for our trailers at the rate of twenty five dollars per month, per trailer. This rental shall be on a month to month basis, payable in advance.
This tenancy can be terminated by the tenant at the end of any month, and can be terminated by the landlord upon sixty days written notice.
At the present time there are six trailers on your property, in the event that more or less trailers are situated on your property we shall pay more or less rent as the case may be."
Plaintiff alleges that on February 27, 1962, not six but fourteen house trailers occupied a part of its land, and seeks recovery of rent under said agreement, for the additional eight trailers. It bottoms this claim of additional encroachments on a 1965 survey made by Florio C. Job, Defendant denies any liability under the agreement and additionally disputes the accuracy of the 1965 survey. At the trial, the location of the dividing line between plaintiff's and defendant's lands became the initial primary issue, and the liability under the agreement the secondary issue, as the question of any liability of defendant rests upon its parking trailers east of that line.
As above noted, the jury returned a verdict for plaintiff. Defendant advances a number of grounds for reversal. We shall discuss one of said grounds in which we find merit, i.e., the trial judge erred in refusing to permit two of defendant's witnesses to testify. This conclusion makes unnecessary the consideration of the merits of other grounds advanced by defendant. Before treating of defendant's above noted objection to the trial judge's ruling concerning defendant's said witnesses, we shall advert to the factual complex, as we view it, and the legal issues which undergird this litigation.
It must be remembered, in seeking to resolve the basic issue, i.e., the location of the dividing line between plaintiff's and defendant's lands, that the respective titles originated from judgments obtained by the Borough of Moonachie in the foreclosures of two tax sale certificates, one covering Plot 1 in Block 132, and the other covering Plot 1 in Block 134. The titles thus obtained are new and complete, under an independent grant which bars or extinguishes all prior title and encumbrances of private persons, provided of course a foreclosure had been properly undertaken and completed and the necessary parties in interest joined as defendants. In the language of then Judge Jayne in Metropolitan Life Ins. Co. v. McGurk, 15 N.J. Misc. 572, 193 A. 696 (Atl. Cty. Cir. Ct. 1937), affirmed 119 N.J.L. 517 (E. & A. 1937):
"A tax title is assuredly in the nature of a new and independent grant from the sovereign authority. But it is to be realized that the tax title is established upon the assessment. In the quantity and character of the property conveyed, the tax sale embraces nothing more or different than did the basic assessment. The property actually assessed and the property conveyed by the tax sale must be the same." at p. 574.
It follows that the municipality obtained title only to those lands upon which the assessment was levied and upon which a lien was thereby ...