Opinion
05-27-1889
COLUMBIA BANK v. JONES et al.
Luther Shafer, for complainant. W. E. Potter, for defendant Gage.
Bill for relief.
Luther Shafer, for complainant. W. E. Potter, for defendant Gage.
BIRD, V. C. The question is whether or not a purchaser of real estate sold for the non-payment of taxes, whose title is afterwards declared to be invalid, and who is made a party defendant in a suit to foreclose a mortgage given after such sale, can claim, as a lien, the amount which he paid for such title, and also the taxes which were assessed on the land, and which he paid after he accepted such title, and before it was declared invalid, the assessment itself being declared good, although the period of the two-years limitation fixed by statute during which the land shall remain liable has expired.
1. It is urged that this purchaser has no claims upon a court of equity, because he is a mere volunteer. This is true, so far as heis a free agent, but not in the sense that he is an intruder. Certainly, the court will not call that class of persons who are invited to attend such sales, and who do attend and bid, mere volunteers. They certainly have the same rights that bidders at other judicial sales have. This defendant had a show of right by color of his paper title. Fiacre v. Chapman, 32 N. J. Eq. 465. The statute declares that the purchaser of lands at such sale shall have the possession of the lands during the period of time named in the certificate of sale, and to this extent he is necessarily in privity with the owner of the fee. In another branch of his argument, counsel for complainant said that the statute clothed the purchaser "with all the rights and emoluments of the owner of the fee."
2. But it is said that, the tax being a lien on the land for only two years by the statute, and the sale having been declared void long after the expiration of that period, the land is discharged, although the owner may be personally liable. Then, it is asked, how can he look for reimbursement, when the title under which he held has been swept away, and the lien which authorized the sale is gone? In my judgment it is this which raises the equity in favor of the purchaser. The obligation to pay the state was not his; nor was the mistake or omission which rendered his title imperfect his. But the state has the tax; and shall he who has paid it, but who was under no obligation, sustain the loss, or he who was delinquent? With very few exceptions, the cases hold that such purchasers shall be protected. Fiacre v. Chapman, 32 N. J. Eq. 463; Schatt v. Grosch, 31 N. J. Eq. 199; Barke v. Early, 33 N. W. Rep. 677; Buckley v. Early, Id. 769; Dillon v. Merriam, 34 N. W. Rep. 344; Harrison v. Sauerwein, 70 Iowa, 291, 30 N. W. Rep, 571.
3. And since the purchaser, by virtue of the statute, became bound to pay all of the taxes which should be subsequently assessed on the land, and did pay such assessments for years, he is entitled to be reimbursed to the extent of the taxes so paid. If necessary, there will be a reference to ascertain the amount so paid, and interest.
4. But the purchaser did not take possession of the land according to the provision of the statute, but allowed the owner or his lessees to remain in possession; but for all that it is thought by the complainant that he should be required to account for the rents and profits. Since no injury resulted from this omission to the owner of the fee, I can see no justice in requiring the purchasers to account for that which it is conceded he never had. I will advise a decree in accordance with these views. Gage is entitled to costs.