Opinion
06-20-1901
In re SLEEPER et al.
George T. Werts, for Mr. and Mrs. Sleeper. William A. Barkalow for Central R Co. John W. Queen, for Jersey City.
Proceedings by the Central Railroad Company of New Jersey to condemn the lands of Lizzie A. Sleeper and another. Motion by the landowners to have the whole award which had been paid into court by the railroad company paid out to them.
In this case the Central Railroad Company of New Jersey took proceedings to acquire title to certain lands belonging to Mrs. Sleeper and her husband, with the result that after an award of commissioners an appeal was taken, and the jury found the value of the lands, with damages, to be $1,850. The railroad company did not make any persons parties to its proceedings except Mr. and Mrs. Sleeper. It, however, became aware that there were certain taxes assessed by the city of Jersey City that were in arrear, and a lien upon the premises; and being advised that the award of commissioners and verdict included the whole value of the lands free of incumbrance, and that the taxes were an incumbrance, paid the money into court, under the eighth section of the act of March 20, 1900 (P. L. p. 79, at page 82). Application was thereupon made on behalf of Mr. and Mrs. Sleeper to have the whole of said sum of money paid out to them. This motion was resisted by the railroad company, and by the mayor and aldermen of Jersey City. By its answer the municipal corporation sets up taxes amounting, with interest, on the 20th of May, to $263.33, which were a lien upon the premises.
George T. Werts, for Mr. and Mrs. Sleeper.
William A. Barkalow for Central R Co.
John W. Queen, for Jersey City.
PITNEY, V. C. (after stating the facts). Counsel for the railroad company and for the city both insist that there is no difference, for present purposes, between a lien for taxes and a mortgage or judgment lien, and that the amount awarded by commissioners, or by the verdict of a jury on appeal, represents the whole value of the land, without any deduction for liens of any sort. On the other hand, counsel on behalf of the Sleepers claims that the contention of the other side, if acceded to, results in the adoption of a new mode of collecting taxes, not recognizedby law, and that the city is confined to its statutory remedy of selling the land to pay the taxes.
I think the latter argument not sound. The question is whether the Central Railroad Company is not, in law, entitled to have all liens upon the lands paid out of this fund. If it had made the city a party to the condemnation proceedings, there would have been, as it seems to me, no doubt about its right in that respect, and that right would have been fully protected by such action. But it also seems to me quite clear that the eighth section of the act above cited provides a method by which the condemning corporation may, without first searching for lienors and making them parties, have all liens upon the land paid out of the fund by paying it. Into court, and giving notice to those parties of such payment.
The question, then, comes to this: Is there any essential difference between the lien of taxes upon land and the lien of a mortgage or judgment? For it is abundantly established by authority in this state that, in a case like this, an award is presumed to include the whole value of the land, free of incumbrance, and that the mortgagee or other lienor is entitled to be paid out of the fund, and the party acquiring the land by condemnation proceedings is entitled to have such payment made out of the fund in exoneration of the land acquired. The leading case is Piatt v. Bright, 31 N. J. Eq. 81, and on appeal 32 N. J. Eq. 362. And see Gray v. Case, 51 N. J. Eq. 426, 26 Atl. 805, I think there can be no doubt that the lien for taxes stands on the same ground as other liens. This seems to be the well-settled practice in New Jersey, and is illustrated in the recent case of Burnet v. Dean (N. J. Ch.) 40 Atl. 532, which was a foreclosure of a mortgage, and the municipality of South Orange was made a party by reason of its claim of lien for taxes, and set up its claim by answer, and it was adjudicated upon, and a decree made for certain taxes, giving them precedence over the complainant's mortgage. I will advise a decree accordingly.