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Wattles v. Plotts

Decided: February 9, 1989.

GURDON B. WATTLES, SUBSTITUTED PLAINTIFF FOR ELIZABETH B. SHIELDS, PLAINTIFF-APPELLANT, CROSS-RESPONDENT,
v.
EDWARD PLOTTS, HIS HEIRS, DEVISEES AND PERSONAL REPRESENTATIVES, AND HIS, THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT, TITLE, AND INTEREST, ETC., ET AL., DEFENDANTS-RESPONDENTS, CROSS-APPELLANTS



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County.

O'Brien, Scalera and Stern. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

Plaintiff Gurdon B. Wattles, substituted plaintiff*fn1 for his mother Elizabeth B. Shields who was the purchaser of a tax sale certificate and who filed an action to foreclose the right of redemption, appeals from a judgment authorizing defendants to redeem the tax sale certificate held by plaintiff. Defendants cross-appeal from that portion of the judgment setting forth the amount necessary to redeem which includes expenses and attorneys' fees. We affirm.

On December 13, 1969, Elizabeth B. Shields and her late husband Richard T. Shields purchased a tax sale certificate covering Lot 10 in Block 57 on the Tax Assessment Map of the Township of Lebanon, consisting of 6.21 acres, for the total sum of $1,131.59 made up of taxes of $70.50 plus interest and costs, together with a premium of $1,050. Upon the death of Richard T. Shields, his interest was conveyed by executor's deed to Elizabeth B. Shields.

A 60-year title search of the premises revealed the last record owner to be Edward Plotts. A search of the records of the Surrogates of Hunterdon and Warren Counties did not reveal any estate for Edward Plotts or his wife Catharine Plotts. Inquiries by plaintiff's attorney of old-time residents of the area did not disclose any knowledge of Edward Plotts nor his heirs. Although the telephone book in Hunterdon County

did not reveal anyone with the surname Plotts, the telephone directory for the Borough of Washington in Warren County listed a J. L. Plotts. That person indicated his belief that he was an heir of Edward Plotts and perhaps the sole heir, but concluded that "[W]ithout further proof of my eligibility as an heir to Edward Plotts it would be pointless to pursue the case." He has since moved to Michigan.

On November 21, 1985, a notice of the intention of Elizabeth B. Shields to institute a tax title foreclosure suit was published in the Hunterdon County Democrat which solicited information as to any person who might have an interest in the property. There was no response to this notice. On March 24, 1986, Elizabeth B. Shields filed a complaint to foreclose the right of redemption, naming as defendants Edward Plotts, his heirs, etc., "unknown owners" and their heirs, etc., and James L. Plotts and the State of New Jersey. A request to enter the default of defendants was filed on July 9, 1986. On October 24, 1986, Irma Horrocks and Harry B. Shurts obtained an order permitting them to file an answer out of time. On March 24, 1987, five additional defendants entered the action, Luthor Guise, Jacob Castner, Janet Currine, Gregory Younkin and Clarence Chevren.

These persons, ultimately ruled to be the heirs of Edward Plotts with a right to redeem, were disclosed through the efforts of National Asset Recovery, Inc. (National), described by plaintiff as an "heir hunter." National started its investigation with James L. Plotts who had been found by plaintiff and named as a defendant in the foreclosure action. In New Jersey census records National discovered that Edward Plotts resided in the Borough of Washington with his wife Catherine Plotts and had two daughters, Elizabeth and Annie. Mr. Plotts died intestate, and National pursued the heirs and devisees of his daughters, ultimately revealing the persons named as defendants in the action. National entered into an agreement with the heirs and devisees under the terms of which, at no expense to them, National would advance the money necessary to redeem

the premises from the tax sale and "to turn it to a profit." After reimbursement for National's out-of-pocket expenses out of the proceeds of the sale of the property, the balance would be split between National and the heir. National was given full authority to sell the asset at public or private sale.

The issue contained in the pretrial order entered on December 11, 1987 was, "Are the individual defendants heirs of Edward Plotts?" On that day, December 11, 1987, the trial judge denied plaintiff's application based upon N.J.S.A. 54:5-89.1 to bar defendant Harry B. Shurts*fn2 from a right of redemption based upon the involvement of National in disclosing his identity as an heir. On this appeal, plaintiff seeks a review of that decision.

Thereafter the matter was tried in the Chancery Division and the trial judge concluded on February 1, 1988 that the named defendants are the heirs of Edward Plotts.*fn3 In the final judgment, the judge included in the amount to redeem, in addition to the taxes and interest, expenses in the amount of $58.73 and an attorney fee of $1,350, for reasons explained in the ...


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