This is a mortgage foreclosure, covering property in Willingboro, against John and Margaret Stevenson and Mr. Stevenson husband of Margaret Stevenson. The complaint alleges a note for $45,879.00 and a mortgage were executed on April 27, 1984 and the mortgage recorded on May 2, 1984 in the Clerk's office in Burlington County. It also alleges the mortgage "was a purchase money mortgage and was given to secure a portion of the purchase price." Of the named defendants, none except Burlington County filed an answer. The allegations against the county are found in subparagraphs 1. and 2. of paragraphs 12 and 13 and recite:
12. The following instruments or liens appear of record in the Office of the Clerk of BURLINGTON County which affect or may affect the premises described herein all of which instruments or liens are subordinate to the lien of the mortgage set forth in paragraph 2 above.
1. Burlington County is made a party defendant by virtue of a lien claim filed against John Stevenson, Sr. and John Stevenson, Jr. recorded on December 14, 1981 in Book K at page 131 as Docket No. 8402 in the amount of $107.50.
2. Burlington County is made a party defendant by virtue of a lien claim filed against John & Ethel Stevenson recorded on December 14, 1981 in Book K at page 130 as Docket No. 8401 in the amount of $541.30.
13. Any interest or lien which any of the defendants herein has or claims to have in or upon the said mortgaged premise or some part thereof is subject to the lien of plaintiff's mortgage.
The county's answer admitted the allegations of paragraph 12 but denied those of paragraph 13. Plaintiff filed a motion
for summary judgment asserting in its brief that its mortgage had priority under the terms of N.J.S.A. 46:9-8 notwithstanding that its purchase money mortgage was recorded after the county's liens. The county filed a cross motion asserting its liens arose out of hospital services provided the Stevensons and have priority. The county seeks the imposition of a constructive trust against the proceeds generated from the [sheriff's] sale of the premises. Plaintiff's brief asserts that the county's motion is "procedurally" lacking because it has not established that the Stevensons named in its liens are the same Stevensons named in its complaint. That issue is not, however, as a practical matter, material to the present motions relating to priorities. If plaintiff prevails, the county's liens are unaffected, if indeed, the Stevensons named in the foreclosure are not in fact the Stevensons named in plaintiff's complaint. On the other hand, if the county prevails, the issue would then become critical for plaintiff whose burden it would be to prove at a hearing that the Stevensons named as defendants and aliened by the county as recipients of assistance were different persons of the same or similar name. That is so, in my opinion, because it was plaintiff who, in good faith based upon a judgment search, chose to join the county thereby raising a presumption that the Stevenson defendants were also the persons who accepted county assistance.
I turn to the merits. The county's sole argument is based upon policy considerations surrounding N.J.S.A. 44:5-19.1 et seq., an enactment passed in 1957 and entitled:
An Act providing for the filing of liens for the cost of the furnishing of medical care and hospitalization by counties in institutions other than public institutions and providing means for compelling relatives responsible for the support of persons receiving such service to pay the cost thereof to the county. [ L. 1957, c. 139 at 530]
The first of the ten subsections of the act provides:
The board of chosen freeholders of any county, which furnishes medical care and hospitalization to resident indigent patients who cannot be maintained by private means, in a hospital or hospitals supported by private charity, on a per diem patient basis, shall have a lien against the property of any person ...