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Dehart v. Bambrick

Decided: March 2, 1981.

JOHN W. DEHART, JR., AND ROBERT E. DEHART, PLAINTIFFS-APPELLANTS,
v.
W. LEWIS BAMBRICK, CLERK OF THE SUPERIOR COURT OF NEW JERSEY, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Chancery Division, Salem County.

Michels, Ard and Furman. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Plaintiffs John W. DeHart, Jr. and Robert E. DeHart appeal from a summary judgment of the Chancery Division which dismissed their complaint seeking to compel defendant W. Lewis Bambrick, Clerk of the Superior Court of New Jersey (clerk), to sign and file a judgment foreclosing all right of redemption in the properties covered by the tax sale certificates purchased by their predecessor in title, John DeHart, Sr. The issue posed by this appeal is whether N.J.S.A. 54:5-79 of the New Jersey Tax Sale Law requires that a tax sale certificate actually be foreclosed on or before 20 years from the date of its sale or whether the statutory 20 year period of limitation is tolled simply by the institution of an action to foreclose the equity of redemption. The clerk, following the former acting standing master's construction of the statute, concluded that the equity of redemption must actually be foreclosed, that is, the foreclosure must be completed by obtaining and filing a judgment within the 20-year period prescribed by N.J.S.A. 54:5-79. He, therefore, refused to sign and file the judgment of foreclosure. We agree and affirm.

On June 23, 1958, John DeHart, Sr. purchased two certificates of sale for unpaid municipal tax liens. The certificates covered properties that are identified as Block 39, Lot 14, and Block 39, Lots 18-21, on the tax maps of Monroe Township, Gloucester County, New Jersey. On June 19, 1978, four days prior to the expiration of the 20-year period of limitation set forth in N.J.S.A. 54:5-79, plaintiffs filed a complaint in the Chancery Division seeking to foreclose the right of redemption of the owners of the property who were named as defendants. These owners did not redeem the certificates and on October 16, 1978, plaintiffs obtained an order directing the entry of a judgment of foreclosure in the Chancery Division. The order was obtained after the 20-year statutory period of limitation had expired.

On December 18, 1978 plaintiff presented a form of judgment of foreclosure to the clerk for signature and filing. However, the clerk refused to sign and file the judgment because plaintiffs

had failed to complete the foreclosure procedure within the 20-year period set forth in N.J.S.A. 54:5-79. On December 20, 1978 the foreclosure unit in the clerk's Office confirmed the refusal in a letter it sent to plaintiffs, stating that:

Judgment cannot be entered in this case since the tax certificate is void at the expiration of 20 years from the date of sale NJSA 54:5-79. The complaint states that the sale was held on June 23, 1958. Since the foreclosure of the right of redemption was not completed before June 23, 1978, the certificate is void.

On March 8, 1979 plaintiffs instituted this action by a complaint in lieu of prerogative writs seeking to compel the clerk to sign and file the judgment of foreclosure. Defendant filed an answer, asserting by way of separate defense that the action was barred because (1) it was not commenced within 45 days after the accrual of the right to the claimed relief, as required by R. 4:69-6(a), and (2) plaintiffs failed to comply with the provisions of N.J.S.A. 54:5-79. Defendant's motion for summary judgment on the latter ground was granted. The stenographer's notes of the summary judgment hearing, including the trial judge's decision, have been lost, and we have not been furnished with the trial judge's decision or reasons for granting the motion. Plaintiffs appealed.

I

Preliminarily, we disagree with the clerk's contention that plaintiffs' only remedy to review his action in refusing to sign and file the judgment was by a direct appeal to the Appellate Division pursuant to R. 2:2-3, and not by instituting an action in lieu of prerogative writs under R. 4:69-1. The signing and filing of a judgment is simply a ministerial act, the performance of which can be compelled by an action in lieu of the former prerogative writ of mandamus. However, for mandamus to lie, there must be a clear and definite right to the performance of the ministerial act or duty. Switz v. Middletown Tp. , 23 N.J. 580, 587-588 (1957); Reid Development Corp. v. Parsippany-Troy Hills Tp. , 10 N.J. 229, 237-238 (1952); Union Cty. v. Benesch , 103 N.J. Super. 119, 125 (App.Div.1968); Finn v.

Wayne Tp. , 45 N.J. Super. 375, 380 (App.Div.1957). In this regard, the Supreme Court's discussion of the nature of the remedy of mandamus in Switz v. ...


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