Opinion
05-11-1900
ASHBY et al. v. ASHBY.
Clarence T. Atkinson and Mark R. Sooy, for complainants. D. J. Fancoast and Chas. E. Hendrickson, for defendant.
(Syllabus by the Court.)
Bill by Timothy W. Ashby and others against Amos K. Ashby. Decree for complainants.
The four complainants are the owners, as tenants in common in fee, each of the undivided one-fifth part of a steam gristmill property in Burlington, N. J. The defendant is the owner of the other undivided fifth part. This property was owned by Edward Ashby, the father of the Ashby parties, in his lifetime, and was by him, by his will dated the 19th day of June, 1886, and proven June 5, 1888, devised to his widow for life, with a privilege to his son Amos K. Ashby, the defendant, to continue in the occupancy of the mill, etc., "he paying all taxes, and all needed repairs, at his own proper cost," and a further yearly rental of $425 in quarterly payments to the widow during her life; subject, also, to the same conditions and provisions as were in the will imposed upon another son, Timothy, regarding his occupancy of what the will describes as the "Mansfield Mill." One of these conditions was that he should "keep the said property in good repair at his own proper cost." The testator gave the further privilege to his son Amos, the defendant, to become the purchaser of the Burlington Mill, at the price of $10,000, during the period of three months after the decease of the widow. After that period the executors were given a power to sell the properties and to convey them in fee simple. The testator gave several bequests, among others one to the defendant of $1,000 debt which he owed the testator. Subject to the above disposition, the testator devised the residue of his estate to three of his sons and two of his daughters in fee, and, in case any died without issue during the lifetime of the widow, the share of such decedent to vest in the survivors. One daughter, Mrs. Pharcs, has conveyed her share to the complainant Robert Ivins. The defendant is one of the residuary devisees to the extent of one-fifth. The widow survived the testator. None of the children died during the lifetime of the widow. The defendant, Amos K. Ashby, continued in the occupancy of the Burlington Mill under the terms prescribed in the will, and has remained in possession ever since. On the death of the widow, in 1897, the defendaut did not exercise his option to purchase the mill, and the executors, on the expiration of the three months after the death of the widow, advertised the property for sale.
The defendant, Amos K. Ashby, had made certain repairs, etc., to the mill building, for which he insisted he ought to be repaid before any sale should be made under the power, and he filed his bill in this court in the case of Ashby v. Ashby, 46 Atl. 522, seeking to restrain the executor's sale of the mill until his right to compensation should be established, and his expenditures in repairing the mill building should be decreed to be paid him out of the proceeds of the sale. This matter has been disposed of in an opinion inthat cause filed in May, 1900. On March 8, 1898, when the executors were about to make public sale of the mill, pursuant to advertisement, the defendant appeared, and caused a notice to be read, declaring that he claimed to be the owner of three roller mills, the purifier, smut mills, separators, two buhr mills, a flour packer, the bolting machines, all the belting and other fixtures in the mill, and that he claimed the right to remove them from the mill when he surrendered the premises to any purchaser. The effect of this notification was to defeat the executor's sale, as no one would bid in view of the defendant's claim to own in his own right substantially all the machinery necessary to the carrying on of the milling business. The com-plainants, who are entitled to four-fifths of the proceeds of the executor's sale, thereupon filed their bill in this cause against the defendant, setting up the foregoing facts, and insisting that the machinery and equipment claimed by the defendant are part of the mill and real estate, and necessary and indispensable to the use and running of the mill, and that they were paid for by the widow and devisees in remainder; that their removal by the defendant, who is in possession, would be waste to the premises, and a destruction of the mill for its sole use, and a prevention of the execution of the power of sale by the executors. They pray that the defendant may be restrained from removing the above named or any other fixtures from the mill, and from committing any waste thereon, and for further relief, etc. The defendant answered, asserting that he had placed the claimed articles in the mill as tenant. He denied that they were fixtures, and as such a part of the realty which could not be removed. He denied that they were paid for by the other persons interested in the premises, and averred that they were all put in the mill by himself as tenant, for his own use and benefit. He, insisted that he had a right to give notice of his claim, and that in doing so he had not unlawfully interfered with the executor's sale; that beyond giving the notice he had made no threats to remove any fixtures or to do any waste; that his sole object in giving the notice was to preserve his rights, and not lose them by allowing an innocent party to buy the mill without notice of his claim. A preliminary injunction was allowed, and the case has now come for final hearing.
Clarence T. Atkinson and Mark R. Sooy, for complainants. D. J. Fancoast and Chas. E. Hendrickson, for defendant.
GREY, V. C. (after stating the facts).The complainants are entitled, as the owners by devise of four undivided fifth parts of the mill, to receive that proportion of the proceeds of the sale of the mill which the executors are about to make under the power given to them in the will of Edward Ashby, the father of the Ashby family. The defendant is the devisee of the other undivided fifth, but originally came into possession of the mill in his father's lifetime under a lease from him. He continued in possession under the privilege given him in the will, and thereby assumed the obligations there imposed, that he would pay taxes, a named rent, and for all needed repairs, and keep the property in good repair, at his own proper cost. His possession under that tenure began in 1888, and continued up to 1897, the time of the termination of the life estate by the death of the widow. He declined to purchase the mill under the option reserved for him in the will, and, when the executors afterwards proceeded to sell, he gave notice that he claimed to own all the above-named machinery. The sole object of the complainants in this suit is to restrain the defendant from removing this machinery. The defendant admits that he claims to own the articles named, and that he gave public notice at the executor's proposed auction sale of this claim, and insists that he had a right to give such a notice of ownership, and was, indeed, bound to do so, in order to save the risk of losing his property in case a purchaser should in good faith buy the mill in ignorance of his rights. He further contends that there is no occasion for an injunction to restrain his removal of the things claimed, because he declares he has made no declaration of a purpose to remove them.
The whole burden of the defense has been directed to show that the defendant owns the articles in dispute, and has the right to remove them. It is difficult to see what value such an ownership can have unless it is to be protected by the maintenance of possession of the things owned. The defendant now has them in actual holding in the mill. It is proposed to sell the premises of which they are the essential equipment, and it can hardly be believed that the defendant, if he goes out of possession of the building, would leave what he strenuously insists is his property behind him. Furthermore, the evidence of the defendant's intention to remove is quite convincing. The proofs, including his own testimony on cross-examination, indicate not only such a purpose, but also a willingness on the part of the defendant so to use his claim of ownership, and the proclamation of his purpose to remove, that the disclosure, when made public to the attending bidders at the proposed executor's sale, would prevent any one but the defendant from bidding. So far as any issue is made on the point of the defendant's purpose to remove the equipment of the mill, it is clearly shown that he has claimed, and now asserts, a right to remove, and that it is his intention to do so, whenever he deems it to be best for his own interests.
The other point of dispute to which the greater part of the proof and argument is directed is the assertion by the defendant that he is the owner of the several articlesin question, and that he bas a right to remove them from the mill. It should be noted that the defendant asks no relief as tenant in common against the complainants by way of cross bill. He sets up no claim of a rigbt to have the complainants, as co-tenants of the mill, reimburse him, in whole or in part, for his outlay in purchasing the new machinery. He stands for his defense solely upon his contention that he is the absolute owner in severalty of the equipment of the mill, and that he has a right to remove it. This position of the defendant calls for an examination of the manner in which he came into possession of the mill. The evidence, with but little variance, shows that, after a preliminary tenancy of the mill under his father in his lifetime, the defendant continued in the occupancy under the terms prescribed by his father's will above mentioned, among which was an undertaking that the defendant should keep the property in good repair, and pay for all needed repairs at his own expense. Just prior to the father's death, the mill had been refitted with new machinery, changing it into the more modern roller method of flour making. A considerable expense had been incurred in making this change, for which the defendant had given his notes, one of which at the time of the father's death was in the bank, and the defendant refused to pay it. After some dispute, a compromise settlement was arranged for the express purpose of preventing any contention about the ownership of the equipment of the mill as distinguished from the mill property. The family voluntarily raised and paid $2,018.70, about one-half of the expense undertaken by the defendant in purchasing the roller machinery. This was in 1889, in the lifetime of the mother, during whose estate the defendant was, by the terms of the will, secured to be permitted to occupy the mill at a fixed rental, the payment of the taxes, and keeping the property in good repair. There is no dispute that immediately after this change was made the whole equipment of the mill belonged to the mill property, and constituted a part of the realty, and that the title thereto was in the owners of the land. Nor is there any dispute that the building was originally erected as a steam gristmill. Its machinery and equipment were fitted into it for that purpose, and became and were used as an entirety,—a single thing,—composed of various parts, but all appropriate for, and used to accomplish, a common -purpose. It was this entire thing which came into the possession of the defendant at the inception of his tenancy, and has been held and used by him ever since as an entirety,—an active, producing steam gristmill "plant." The testator so dealt with it, speaking of it in his will as his "mill property."
The defendant continued to occupy the mill, under the terms named in the will, from this time (1889) up to the death of the widow, in 1897, which terminated the life estate, and brought to an end the privilege of occupancy secured by the will to the defendant at the fixed rate therein named, and also necessarily thereafter relieved the defendant from further observance of the obligations imposed by the will that he should repair, etc. After the death of the widow, he was as to his co-tenants an occupier, without contract, expressed or implied, except such as would be imputed by the law to a tenant in common who held and enjoyed the exclusive use and profit of the common property. All the disputes between the parties have arisen touching matters which happened during the period between 1889 and 1897, while the defendant held under the terms imposed by the will.
After the mill had been refitted with the roller method, as above stated, in 1889, the defendant claims that by the year 1895 the equipment of the mill had become much worn and worthless, and that the several machines used in the flour-making process were so inefficient, as compared with those in competing mills, that he was unable to produce a standard flour, or profitably to carry on the business, without supplanting the old and worn-out machinery with that which was of more modern invention. But all the witnesses agree that in 1895, up to the very time the several machines, etc., claimed by the defendant, were put into the mill, it was actually running in the production of flour and feed, and was stopped for the taking out of the machines then in use, and the introduction of the new ones (now claimed by defendant) in their place. It is therefore an established fact that the defendant took out the machinery of an active running plant and put other in its place. It is also undisputedly shown that the machinery which he took out was indispensably necessary to the performance of some one or more of the functions of the mill in preparing the final product, and that which he put in supplied its place in these particulars. Though each machine may stand separate and apart from the others, it is yet so connected by spouting and elevators, and by the partial process which each contributes in grinding the grain, or in separating it into its several marketable forms, that all constitute but a single "plant." Each machine is but a link in itself, but all are needed to form the chain which gives to the separate links, as parts of the plant, their only value. Take out but one link, and the chain is destroyed. Every mill wright who was examined declared, in substance, that if the machines, etc., claimed by the defendant, were taken out of the mill, there would be no mill left.
The contention of the defendant is that the machines he claims to own were trade fixtures, brought by him upon the premises for the furtherance of his business, not permanently or incorporatively annexed to the realty, but only temporarily placed there, for theconvenient conduct of his trade. The law considers favorably the right of the tenant to bring upon demised premises such additions to the property, already there, as may aid him in the conduct of his business, and allows during the period that he remains in possession the removal of those articles which the tenant brought on the demised premises, so far as they come within the definition "trade fixtures." The instances in which such removals are permitted of property which has for the time become a part of the realty should, however, be limited to additions made by the tenant to the property demised, and cannot be extended to include voluntary substitutions, whereby the tenant takes away from an equipped plant and destroys component parts essential to the single purpose to which the whole is devoted, and for which the tenant rented it, and puts in their place new parts, which, when introduced, become, by their relation to the premises, so entirely parts of the realty that their removal would destroy the whole plant The defendant received a furnished and equipped steam gristmill as an entirety. Each piece of its machinery was but a component part of the entire thing. When the defendant, while the plant was yet running, took out any of these component parts, and destroyed them, or used them to purchase new apparatus, which he put in place of the old machinery, the new apparatus being also essentially necessary to the accomplishment of the common purpose of the plant, it became, by the defendant's own act a part of it, and he cannot afterwards be permitted to destroy the whole plant by taking away its several essential parts or any of them. The portions taken away were essentially necessary to the maintenance of the plant; the portions substituted are equally so. The renovated plant requires all the parts claimed by defendant in order to be of any value as a mill. If they be taken away, the premises will be worthless for the purpose for which they were constructed and used. Such a result would offend both the rules recognized as maxims as long ago as the time of Lord Hardwicke—First, that "you should not destroy the principal thing by taking away the accessory"; and, secondly, that "the thing proposed to be removed must be deemed to be part of the estate, because it cannot subsist without it." Lawton v. Lawton, 3 Atk. 15.
The defendant claims that the new machines are only screwed or blocked upon the floor, and this simply to hold them in place, and that for this reason they have not been annexed to the realty; that their removal can be effected without serious damage to the mill building; and Blancke v. Rogers, 26 N. J. Eq. 566, Ames v. Brewing Co., 56 N. J. Eq. 309, 38 Atl. 858, and Id., on appeal, 57 N. J. Eq. 347, 45 Atl. 1090, are cited to support the claim. This argument wholly ignores the undisputed fact that the defendant came into possession of the mill fully equipped with a set of machines which successively and continuously performed the single work for which the whole premises were constructed and used, namely, the grinding of grain. He has taken these out, sold them, exchanged them, or converted them into old iron, so that they are utterly useless as parts of a mill equipment. He has supplied their places by the new machines, which he has so connected with the spouting, the elevators, the gearing, and other equipment of the mill that each now successively and continuously exercises its peculiar function in producing the single product for which the mill and its equipment were constructed and have always been used. The defendant, by his own uninvited act of removing the previous machines and putting the new ones in their place, has irrecoverably made the latter a part of the plant. Having so dealt with them, he has made them of the essence of the realty, and the extent of the annexation is of little significance. In Erdman v. Moore, 58 N. J. Law, 461, 33 Atl. 958, there was no such physical annexation as would alone have made the article a fixture, but there was a clear showing of an intention to do so, and the exhibition of this intent was declared by Chief Justice Beasley to be controlling. In Feder v. Van Winkle, 53 N. J. Eq. 370, 33 Atl. 399, Mr. Justice Van Syckel, speaking for the court of appeals, declared that the fact that the articles in dispute might be removed and used elsewhere was not decisive of their character. The fifth paragraph in the syllabus of that case might have been written for this case. The learned justice says: "The chattels in this case were actually annexed to the freehold. They were fitted for and applied to the use to which the real estate was appropriated, all being designed for, and necessary to, the prosecution of a common purpose. Thus, the machinery and land became unified and incorporated together as a whole," etc. In Lee v. Wood-Working Co., 55 N. J. Eq. 627, 37 Atl. 769, Vice Chancellor Pitney held that the acts of the parties, in dealing with the machines in dispute, justified an inference of intention to annex, which overcame their own testimony declaring the existence of a contrary purpose. The circumstances of the case above recited show that the machines claimed by the defendant have become part of the realty, and cannot lawfully be removed by him. This result is reached irrespective of the obligation imposed upon the defendant by the terms of his father's will, that he should keep the property in good repair, and should pay for all needed repairs at his own cost This obligation to keep the property in good repair applied to the whole property, without exception; the building and the machinery,—whatever constituted "the property." The defendant was obliged to keep it in good repair, without regard to the cause of the dilapidation. The will makes no exception because of wear and tear or of the elements. The defendant's own testimony (though disputed by others) is tothe foreman, who occupied the most conspicuous position of all the jurors. There certainly is not the slightest reason why they might not have known that he was one of the jurors, from their own recollections; and, if that was not sufficient, nothing prevented an examination of the list of jurors before the coroner, or an actual inquiry of Wilson when he was on his voir dire. Apart, also, from all this, there is no allegation in the record that the defendants did not have such knowledge at the time when Wilson was brought to the book. The exceptions do, indeed, show that it was after the trial had begun that the knowledge of the alleged disqualification first came to their attorneys, but there is nothing in the record as to when it first came to the knowledge of the defendants. Nor can ignorance, of the fact be imputed to them as a presumption of law or of fact. Having been present at the hearing before the coroner, the presumptions would rather tend to prove that when Wilson was called as a juror they knew of his service on the coroner's jury. And, whether this be correct or not, it cannot be questioned that even a reasonable diligence in making proper inquiry would have enabled them to obtain possession of all the facts. If his presence on the jury resulted detrimentally to justice, the court, after the verdict, was fully empowered to grant a new trial; but we approve the ridings as set forth in this exception, as founded upon the rules of proper practice, and most conducive to the attainment of justice.
The second and third exceptions present a question of evidence. The sheriff, who had been sworn as a witness for the state, testified: That, having been informed of the homicide, he went to Fleming's house to look for Young, one of the defendants. That he asked for Young, who thereupon came down "about half dressed," and that witness said, "Joe, you don't know what I am up here for, do you?" and he said: "Yes, sir; I do. It's about that shooting scrape in Belair." That he asked for his pistol, and he said he didn't have any. That witness said, "You could not shoot a man without having a pistol." That Mollie Fleming went into the house and got the pistol, and witness "asked him if it was the pistol he did the shooting with, and he said it was." That Young said he "had shot once or twice," etc. On cross-examination, witness said that "Young seemed to be very much excited, and so was Bush." During the giving of the evidence the counsel for the prisoners several times objected to the admission of Young's answers, and, after the cross-examination, excepted generally to the sheriff's testimony. The court, however, overruled all the objections, and admitted it. The fact that a party is in custody is not enough of itself to render his confessions Inadmissible, provided they are not extorted by inducements or threats. Pierce v. U. S., 160 U. S. 355, 16 Sup. Ct. 321, 40 L. Ed. 454; Rogers v. State (Md.) 43 Atl. 922; Ross v. State, 67 Md. 288, 10 Atl. 218. In this case the confession was freely and voluntarily made. No threat was made by the officer, and no hope or promise of benefit held out to him. It was "left to the prisoner, as a matter of perfect indifference, whether he should open his mouth or not" This, said Pollock, C B., in Reg. v. Baldry, 12 Eng. Law & Eq. 597, is the distinction between those cases where the confession is held inadmissible, and those where it is not. In Biscoe's Case, 67 Md. 10, 8 Atl. 577, on which the appellants rely, there was an inducement which the court thought was of the "strongest kind." The confession was therefore rejected.
After the state had closed its case, and some evidence had been given on the part of the defendant, an attachment issued for Mollie Fleming, an absent witness, and upon the return thereof it appeared that the witness was ill and unable to attend. Thereupon the defendants, by their attorneys, prayed the court "to pass an order directing that a commission issue at once to take the testimony of said Mollie Fleming." The refusal of the court to so order is the ground of the defendants' fourth exception. In some of the states of the Union there are statutes providing for a commission to take the testimony of absent witnesses in criminal cases. In Maryland there are provisions for taking the depositions of absent witnesses in civil cases. But they do not apply in criminal cases, and in such there is no statute or practice in any of the courts permitting depositions taken * by a commissioner to be read as evidence. There is in this state no inherent power to direct the taking of depositions to be used as evidence. Whatever power the courts of law have is conferred by statute, the provisions of which must be strictly followed. In Bell v. Morrison, 1 Pet. 355, 7 L Ed. 174, where a deposition was excluded by the lower court, Mr. Justice Story, in speaking for the court, said that: "This is a point altogether dependent upon the construction of the act of congress," etc. "The authority to take testimony in this manner, being in derogation of the rules of the common law, has always been construed strictly," etc. So, in Jackson v. Hobby, 20 Johns. 362, the court refers to the statute as being "an innovation on the common-law rules of evidence." In Anon., 2 Chit. 199, a rule was moved to show cause why the lessor in ejectment should not be permitted to examine a witness upon interrogatories, on the ground that he was too ill to attend. The court, in refusing the motion, said: "We cannot grant it You must apply to a court of equity, or get them to admit the facts." 2 Tidd, Prac. marg. p. 860; 6 Enc. PI. & Prac. pp. 478, 479; 1 Greenl. Ev. §§ 320-323. Finding no error, the judgment will be affirmed. Judgment affirmed.and villages in this state. The roads within the limits of the village were by that act put under the control of the village trustees, who were given little, if anything, more than the powers of overseers of the highway. The township committee of the township were directed to give a certain proportion of the road money collected in the whole township to the trustees of the village. This charter was amended by the act of April 4, 1872 (P. L. 1203). That act, by the fifteenth section, gave the board of trustees power by ordinance to order to be raised in each year, upon the persons and property in said village, such sum or sums of money as the said board may deem expedient or necessary for the following purposes: Lighting streets; grading, graveling, or otherwise improving streets and highways, and cleaning and keeping the same in repair; support of a police department; payment of any indebtedness of the village; and contingent expenses of the village. This act did not supersede the right of the township to assess and collect taxes within the limits of the village for general township, county, and state purposes. That machinery was left in full force and vigor. By section 28 it was provided that the village clerk should transmit to the assessor of the township a copy of the ordinances that might be passed for the purpose of raising money by tax, and "it shall be the duty of the assessor of the township to assess the said sum or sums upon the persons and property within the limits of the village, and the duty of the collector of the township to collect the same, in the same manner and at the same time that the taxes in the townships of said county are assessed and collected: provided that no township tax for the working, repairing, paving or permanent improvement of roads shall be assessed and collected within the limits of the village"; and no such tax in the other part of the township shall be expended within the village. And, by the twenty-ninth section, the collector of the township; after collecting such taxes, shall turn them over to the treasurer of the village. A supplement to this charter was passed in 1875 (P. L. 395). That act provided for the appointment of a collector of taxes for the village, and for the payment of taxes directly to such collector; and section 10 provided that the duties now prescribed by the previous sections of the act to be done by the collector of the township shall be performed by the village collector. The act of March 14, 1879 (P. L. 340), first made taxes generally throughout the state a paramount lien over and above mortgages. It declares (section 1) that "all taxes which shall be laid, assessed or imposed, for or on account of any lands, shall be, become and remain, from and after the date of such levy and assessment, a full and complete first and paramount lien on all the lands, tenements, hereditaments or real estate, on account of which such levy and assessment shall be made, for the space of two years from the time when such taxes so assessed were payable"; and subsequent language makes it paramount to mortgages. In the second and subsequent sections, provision is made for the collection of such taxes by advertisement and sale; and by the thirteenth section it is declared "that it shall be the duty of the township collector before 1st day of February in each year to make return in writing to the clerk of the county in which his township is situate, of all unpaid taxes assessed the previous year," and the clerk shall make a list of them. By the fifteenth section, "that in case such tax return shall not have been made at the time herein provided, or in case a name or names shah have been omitted from such return, then and in that ease, such tax shall cease to be a lien upon such real estate as against a purchaser or mortgagee in good faith." The eighteenth section provides as follows: "This act shall not be construed so as to alter, modify, affect, annul or repeal the provision of any charter of any city, village or borough whereby the collection of taxes is regulated, and the taxes assessed and to be assessed in any such city, village or borough shall be levied, assessed and collected as heretofore, and the lien of taxes on lands in any such city shall be and remain as now regulated, and nothing in this act shall be held to impair, alter or affect the said lien in any way whatsoever, this act being intended to apply to townships in this state and not other municipalities." This eighteenth section was amended by an act of May 6, 1889 (P. L. 357). but such amendment did not affect its construction for present purposes.
Much discussion was had as to the true construction of this act. I think it was intended to make all lands subject to a tax for two years, and no longer, but the period of two years might be cut down by a failure to comply with the terms of the thirteenth and fifteenth sections in cases of townships and township collectors. The effect of the eighteenth section was simply to prevent the machinery previously in that act provided for, being held applicable to any city, village, or borough which already was provided with a particular machinery of its own. and that the provision for the lien extending two years and no more did not apply to any city. The reason of this was that it was well known at the time that many cities in the state had charters which provided for an indefinite lien for taxes, and the fear was that this limitation of two years in the act in question might be construed to limit the lien of taxes in those cities. This explains the force of the last line,—"This act being intended to apply to townships in this state and not to other municipalities." It seems to me that that did not prevent the application to villages of the general declaration that all taxes shouldbe a Hen for the space of two years. The effect of that was to make the taxes levied by the village of South Orange for its municipal purposes a lien for two years. And it is unnecessary for present purposes to determine whether or not the thirteenth, fourteenth, and fifteenth sections of that act apply to the village of South Orange, and leave the collector of that village without any means of enforcing the collection of its taxes.
By the act of March 10, 1880 (P. L. 149), it is provided "that all taxes which may hereafter be laid, assessed or imposed, pursuant to the laws of this state, within any incorporate city, village, borough, or other municipality of this state * * * shall be, become and remain from and after the date of such levy and assessment, a full and complete, first and paramount lien on all the lands, tenements, hereditaments or real estate * * * for and during the period now provided for in the act of incorporation or any supplement thereto or revision of the same, or any such city, village, borough or other municipality as aforesaid." The effect of this act, which by its terms applied to villages, was to set at rest any doubts which might exist as to the paramount character of the lien for taxes over and above mortgages and other incumbrances. On March 17, 1882, another act was passed (P. L. 130), which in effect extended the lien for nearly one year, namely, three years from and after the date of the assessment See Hohenstatt v. City of Bridgeton, 62 N. J. Law, 169, 40 Atl. 649, where the construction of this language is discussed.
I hold, then, that the taxes assessed for municipal purposes by South Orange were a lien for three years from and after the time they were levied, and paramount to complainant's mortgage, and that the liens of those taxes have in fact expired, except those brought within that limit, unless other legislation has changed the situation. Tbe defendant contends that by an act of February 22, 1888 (P. L. 97), such change has been effected. That is an act in three sections, the title of which is, "An act concerning taxes and assessments in villages and other municipal corporations governed by a board of trustees, and making same a first lien on real estate, and authorizing sale for the payment of the same." The first section provides that taxes "assessed by any board of trustees of any village or other municipal corporation, against any person or persons, for and on account," etc., "situate in the village or municipality so governed, together with lawful interest thereon, and all costs, fees, charges and expenses in relation thereto, shall be, become, and remain a first and paramount lien upon the lands or real estate * * * until paid." The second section provides for the sale of the land, giving the board of trustees power to issue a warrant for their sale. This act, if valid, and not contrary to the fundamental law, establishes the permanent lien for all taxes assessed after it took effect, which was on February 22, 1888. The defendant contends that it applies to previous taxes. I cannot adopt that view. It says, "Such taxes and assessments as may be lawfully levied, imposed or assessed by any board of trustees," etc. It is clearly prospective in its scope. The defendant fur-ther refers to the first section of the act of March 25, 1895 (P. L. 671), which is a supplement to the act of February 22, 1888. just referred to, and provides that section 2 of that act is amended to read as follows: "And be it enacted, that in case any taxes or assessments referred to in the last section, whether heretofore levied, imposed or assessed, together with interest thereon.
* * * shall remain or shall have remained," etc. That section evidently refers to the first section of the act of 1888, and that, as we have seen, is clearly prospective in its effect. The complainant attacks this legislation on the ground of its unconstitutionality. It is argued that it is contrary to that clause of the constitution which provides that "the legislature shall not pass private, local or special laws in any of the following enumerated cases, that is to say
* * * regulating the internal affairs of towns and counties." And it has been held that a classification such as that here attempted, to wit villages or towns governed by a board of trustees, is not sufficiently general to prevent its being in effect a local and special law. The cases relied upon arc Ross v. Winsor, 48 N. J. Law, 95, 2 Atl. 658; Dobbins v. Board, 59 N. J. Law, 146, 36 Atl. 482. In Ross v. Winsor the act was enti tied "An act providing for additional powers and certain changes in the government of certain localities governed by commissioners" (Acts 1884, 204); and the first section of the act was, "That in all sea-side resorts in this state governed by a board of commissioners." In Dobbins v. Board, the title was, "An act authorizing municipalities governed by commissioners to pave and improve streets and avenues, and provide for the payment thereof." Acts 1892, 146. And the first section of the act provided that "whenever the governing body of any municipality, by whatever name the same may be known, and however created, governed by commissioners," etc. In both these cases the supreme court held that the classification depending upon the name of the body by which the city was governed was inadmissible, and rendered the acts special, instead of general, and hence unconstitutional. The language used in the enactments condemned by the two cases just cited is quite similar to that here under consideration; and those must control the present case, unless it can be properly held that the fixing of the time for which a lien for taxes in a particular municipality shall continueis not an act "regulating the internal affairs of towns and counties." It has been held that the word "towns," as used in the constitution, includes all municipalities, from townships up. Van Riper v. Parsons, 40 N. J. Law, 1; Pell v. City of Newark, 40 N. J. Law, 550. I am of the opinion that the fixing of the time for which a lien for taxes shall continue is a regulation of the internal affairs of the town. Such seems to have been the assumed basis of the discussion in the case of Hermann v. Town of Guttenberg (N. J. Err. & App.) 44 Atl. 758. Suppose the legislature should pass an act declaring that there should be no lien for taxes within the territorial limits of the village of South Orange, naming it as such; could it be doubted for a moment that such an act would be within the constitutional inhibition in question? 1 think it could not. I must therefore hold that the complainant is right in his contention that the claim of the village of South Orange for taxes is invalid, except such as shall be found upon inquiry to be within the rule laid down in the case of Hohenstatt v. City of Bridgeton. The amount of these may be ascertained by a reference, if the parties cannot agree upon them.