Opinion
04-19-1929
HARRINGTON CO. v. JONES et al.
Harry B. Brockhurst, of Jersey City, for complainant. Charles Jones, of Newark, for defendants.
(Syllabus by the Court.)
Suit by the Harrington Company against Charles Jones and others to foreclose certificates of tax sale, wherein defendant named gave notice of application to redeem. Decree advised in accordance with opinion.
Harry B. Brockhurst, of Jersey City, for complainant.
Charles Jones, of Newark, for defendants.
BERRY, Vice Chancellor. This bill is filed to foreclose two certificates of tax sale covering the same property. The first sale was on May 19, 1917, for 1915 taxes amounting to $35.07, and the second was on March 30, 1918, for 1916 taxes amounting to $36.13. Jones, the owner, first learned of the tax sales when the subpoena in this suit was served, and immediately gave notice of an application to redeem. He tendered to complainant the sum of $168.70, made up as follows:
| Tax sale dated March 30, 1918, for the year of 1916 | $ 36 13 |
| Interest on same from the date of sale at 8 per cent. | 30 83 |
| Tax sale dated May 19, 1917 | 35 07 |
| Interest on same from the date of sale at 8 per cent | 34 48 |
| Cots | $168 70 |
He offered also to pay in addition whatever sums were found by the court to be due. Complainant refused the tender, and demanded $385.70, made up as follows:
| Harrington Company lien for 1915 taxes | $102 21 |
| Harrington Company lien for 1916 taxes | 101 17 |
| United States District Court search $2.30 | 1 15 |
| New Jersey Supreme Court search $ 3.24 | 1 62 |
| Search of title | 75 00 |
| Costs of suit to sale | 29 55 |
| Counsel fee | 75 00 |
| $385 70 |
The only issue is as to the amount required for redemption. The sales were made pursuant to the 1903 Tax Act (4 Comp. St. 1910, p. 5075 et seq.) and the laws in force at the dates of the sales control. Rodgers v. Cressman, 98 N. J. Eq. 209, 130 A. 17. Complainant urges chapter 273, P. L. 1916, p. 580, and chapter 211, P. L. 1928, p. 382, as authority for the items of search fee and counsel fee in its statement of the amount required for redemption. Obviously, the 1928 act does not apply. The 1916 act limits the amount of search fees to $10, provided the affidavit there indicated is filed with the collector. This was done. But chapter 212, P. L. 1915, p. 383, provided that no search fee shall be paid on redemption unless the purchaser shall have filed a memorandum as therein indicated, together with a small diagram of the property sold. This was not done. The 1915 act was in full force and effect at the time of these sales, and strict compliance therewith was a prerequisite to the collection of search fees on redemption. They will be disallowed here.
Counsel fees are in the discretion of the court. Harris v. McMurray, 92 N. J. Eq. 1,116 A. 702. No counsel fees will be allowed, as this suit smacks of an effort "to obtain an extra few dollars in costs," as was suggested by the Chancellor in Harris v. McMurray, supra.
The defendant Jones is a reputable and well-known practising attorney of the city of Newark, and his residence is at 10 Princeton place, Upper Montclair, where he has resided for 20 years or more. He testified that he was able to pay the tax against the lots, the subject of these sales, and would have done so promptly, had the matter been called to his attention. I have no doubt of it. By mistake of the complainant, notices were sent to Charles S. Jones, 324 Claremont avenue, Montclair. By the exercise of reasonable diligence, the foreclosure suit could have been avoided.
The complainant also objects to the procedure for redemption in this cause, claiming that the court should have referred the matter to a master and now wants the matter referred, notwithstanding all the proofs are before the court. Why, except that additional costs might have been incurred, I cannot understand. The suggestion that the court or Vice Chancellor of the court has not as much authority as a master to whom the matter might be referred is absurd.
The complainant is entitled to the following amounts on redemption: $30.13 with interest at 8 per cent. from March 30, 1918, to date of tender; $35.07 with interest at 8 per cent. from May 19, 1917, to date of tender; actual disbursements and recording fees; costs of suit to date of tender, now taxed at $35.96. I will advise a decree accordingly.