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Township of Long Beach v. Lot No. 3

Decided: February 4, 1983.

THE TOWNSHIP OF LONG BEACH, A MUNICIPAL CORPORATION, PLAINTIFF,
v.
LOT NO. 3, BLOCK NO. 9, FORMERLY ASSESSED TO JENNIE T. MACUSKER (PRESENTLY LOT 5, BLOCK N-21 ASSESSED TO THREE F ENTERPRISES, INC., A N.J. CORPORATION, DEFENDANT, AND THOMAS P. FINNERTY AND ANNETTE J. FINNERTY, HIS WIFE, INTERVENORS



Wiley, J.s.c.

Wiley

This action involves the question of title to a parcel of land known as Lot 3, Block 9 located in the Township of Long Beach. Jennie T. Macusker obtained title to these premises by deed dated June 20, 1911 from James Murray and recorded in the Ocean County Clerk's Office, Toms River, New Jersey, in Deed Book 389, page 12. On September 19, 1921 the Township of Long Beach acquired a tax sale certificate on the lot, dated October 29, 1921, and recorded in the Ocean County Clerk's Office in Mortgage Book 149, page 261. The tax sale certificate recited that the property was assessed to Jennie T. Macusker and it was sold to the township for $4.74, which included unpaid taxes for 1920 of $2.52 plus costs.

On November 20, 1954 the township filed an in rem foreclosure action against several tax sale certificates. Lot 3, Block 9, was listed in the caption of the complaint as assessed to Mamie Todd or Mary W. McMurray, not Jennie Macusker. Nowhere in the body of the complaint were there any claims asserted against Lot 3, Block 9. Moreover, the tax foreclosure list attached to the complaint, which was supposed to recite the tax sale certificates to be foreclosed and names the assessed owners of the lands, also failed to list Lot 3, Block 9.

Copies of the complaint were filed with the Tax Collector of Long Beach Township, the Ocean County Clerk and the State Attorney General. Notice of the in rem foreclosure was published in the Beach Haven Times on January 4, 1955. The affidavit of publication indicates that Lot 3, Block 9, was not included in the published notice. An affidavit by James Wilson, attorney for the township, indicates that notice of the action was mailed to all individuals whose names appeared on the tax foreclosure list as owners of the properties affected. However, it would appear that neither Jennie Macusker nor anyone else on her behalf received notice by mail of the pending foreclosure on Lot 3, Block 9, since that lot was never listed on the tax foreclosure list.

Final judgment in this matter was entered on March 1, 1955 and recorded on March 4, 1955 in the Ocean County Clerk's Office in Deed Book 1619, page 189. Again Lot 3, Block 9, was listed in the caption as assessed to Mamie Todd or Mary W. McMurray, but Lot 3, Block 9, was missing from the body of the judgment.

On May 6, 1955 the township sold several lots, including Lot 3, Block 9, at a public sale to Marion and Theodore J. Fluehr. Notice of the public sale was published in the Beach Haven Times on April 26 and May 3, 1955. No one appeared and objected to the proposed sale. The township then gave a deed to the Fluehrs on June 10, 1955, which deed was recorded on August 20, 1958 in the Ocean County Clerk's Office in Deed Book 1918, page 219. The deed ostensibly conveyed title to the lots bought by the Fluehrs at the public sale, including Lot 3, Block 9. The Fleuhrs later conveyed their interest in the lot in question to Three F Enterprises, Inc. by deed dated June 28, 1980 and recorded July 23, 1980 in the Ocean County Clerk's Office in Deed Book 3933, page 509.

Three F Enterprises entered into an agreement of sale with Thomas P. and Annette J. Finnerty on January 20, 1981 to build a house on the parcel of land in question and convey the

property to the Finnertys. Although single-family homes had been constructed on some of the lots the township had conveyed to the Fluehrs in 1955, Lot 3, Block 9, had remained vacant. Moreover, sometime within the period from 1955 to 1981 the township had rezoned the area. The parcel which was known as Lot 3, Block 9, is now fully enclosed in a larger parcel presently known as Lot 5, Block N-21.

The house was constructed and a closing scheduled. However, the buyer's title insurance binder raised an exception concerning Lot 3, Block 9. The title binder indicated that the lot was subject to reforeclosure because of the irregularities in the final judgment of the 1955 in rem foreclosure, enumerated above. Three F and the Finnertys entered into a modified agreement, dated June 10, 1981, giving possession of the property to the Finnertys, pending removal of the title exception by Three F, upon payment of a portion of the consideration.

Three F Enterprises requested, pursuant to N.J.S.A. 54:5-104.73, that the township reforeclose Lot 3, Block 9. The township adopted a resolution authorizing the reforeclosure and this action was commenced. The heirs of Jennie Macusker -- Celestia Koerner, Nelson L. Adshead and Jean A. Fedalen -- filed an answer seeking to redeem the property. A motion made by the Finnertys, seeking leave to intervene in this reforeclosure action, was granted. The Macusker heirs then made a motion for summary judgment. Three F and the Finnertys cross-motioned for summary judgment.

The In Rem Tax Foreclosure Act allows a municipality to proceed, in rem, summarily to bar rights of redemption after the tax sale certificate has been recorded in the office of the county recording officer. N.J.S.A. 54:5-104.32. N.J.S.A. 54:5-104.31 states the policy behind the act:

This act shall be liberally construed as remedial legislation to encourage the barring of rights of redemption, and is an alternate and additional remedy to any other remedy provided by law, and shall apply to certificates of tax ...


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