On appeal from Superior Court of New Jersey, Law Division, Cumberland County.
King, Gaulkin and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
The issue is whether a sheriff who sells lands pursuant to a mortgage foreclosure judgment and who executes a sheriff's deed to consummate the sale is responsible for the realty transfer fee (fee) required by N.J.S.A. 46:15-7.
Plaintiff purchased properties as the successful bidder at two foreclosure sales held by defendant as Cumberland County Sheriff. Upon presenting the sheriff's deeds for recording, plaintiff was required to pay the transfer fees. Thereafter, plaintiff, alleging that he paid the fees totaling $252 "under protest," commenced this action against the sheriff for reimbursement. The trial judge granted summary judgment in favor of the sheriff, ruling that the sheriff was merely performing a ministerial function and that the legislature did not intend to burden the sheriff with payment of the fee. Plaintiff appeals, and we now affirm.
N.J.S.A. 46:15-7 imposes "upon grantors" a fee, "which fee shall be collected by the county recording officer at the time the deed is offered for recording." The current fee is $1.75 for each $500 of consideration up to $150,000 of consideration and $2.50 for each $500 of consideration in excess of $150,000. "Consideration" is defined in N.J.S.A. 46:15-5(c) as the actual amount of money to be paid for the transfer of title and "the remaining amount of any prior mortgage to which the transfer is subject or which is to be assumed and agreed to be paid by the grantee. . . ."
Any doubt about the applicability of the fee to the recording of a sheriff's deed was dispelled in 1979 when the legislature amended the statute by adding N.J.S.A. 46:15-6.1. The amendment provides, inter alia, that "[u]pon the recordation of any deed . . . executed by a sheriff . . . the . . . fee shall be computed upon the amount bid for the property plus the remaining amount of any superior mortgages, liens or encumbrances constituting 'consideration'. . . ." In Soldoveri v. Taxation Div. Director, 3 N.J. Tax. 392 (Tax Court 1981), a successful bidder at a sheriff's sale sued to recover the transfer fee he paid under protest to the Passaic County Registrar, contending that a sheriff's deed was exempt under N.J.S.A. 46:15-10. In rejecting this contention the Tax Court reviewed the history of the Realty Transfer Tax Act. It noted that shortly after passage of the Act, the Division of Taxation adopted regulations applying it to sheriff's deeds. The Tax Court also relied on the legislature's subsequent acquiescence in this treatment of sheriff's deeds and further noted that in 1974 during consideration of the 1974 amendments to the exemption section, L. 1974, c. 184, § 4, N.J.S.A. 46:15-10, an attempt to exempt sheriff's deeds was rejected. The Statement of the Senate Revenue, Finance and Appropriations Committee indicated that the word sheriff was deleted from Assembly Bill 1024 amending § (g) of N.J.S.A. 46:15-10, the exemption statute, because "property bought at sheriff's sales are often subject to a substantial first mortgage and it does not seem a hardship to
impose a transfer fee based on that value." The issue of a sheriff's responsibility to reimburse the grantee for the transfer fee was not considered in Soldoveri.
Although the statute provides that "a fee is imposed upon grantors," N.J.S.A. 46:15-7, it is clear that at the core of the statutory scheme is the requirement that the recording officer receive the fee, regardless of its source, before recording the deed.*fn1 Recordation is not a prerequisite to a deed's validity. However, if a grantee seeks the protection of deed recordation, he must pay the fee even if he has not received it from the grantor. Whether there exists a grantor available to pay the fee, or capable of paying it is of no importance to the recording officer except where the consideration has been stated incorrectly in a recorded deed and an additional fee is owing.*fn2
Against this background we address the issue in this case which is whether the Legislature intended that a sheriff selling lands pursuant to a writ of execution issued on a foreclosure judgment is responsible to the grantee for payment of the fee.
In a sale of mortgaged premises pursuant to the court's writ, a sheriff acts pursuant to statute and as an agent of the court, N.J.S.A. 2A:50-36 and 37. Snyder v. Blair, 33 N.J. Eq. 208, 210 (Ch. 1880). The sheriff's deed does not convey any title of the sheriff. The purchaser at the sale is regarded as purchaser from the date of the foreclosed mortgage and not from the date of the sheriff's deed. Koppel v. Olaf Realty Corp., 62 N.J. Super. 103, 115 (App.Div.1960). The purchaser ...