Dvorkin v. Township of Dover

148 A.2d 793, 29 N.J. 303, 1959 N.J. LEXIS 221

• Court: Supreme Court of New Jersey
• Decided: March 10, 1959
• Status: Published

Opinions

The opinion of the court was delivered by

Bublifg, J..

This- is an action for a refund of moneys paid by plaintiffs • Henry Dvorkin and Esther Dvorkin, his wife, to defendant Township of Dover, County of Ocean, for an assignment of a tax sale certificate on lands subsequently redeemed by a party in interest. The facts were stipulated and the Superior Court, Chancery Division, entered a judgment in favor of the defendant. Plaintiffs prosecuted an appeal to the Superior Court, Appellate Division, and while the cause was pending there this court certified it on our own motion.

On May 22, 1956 defendant, pursuant to the provisions of N. J. S. A. 54:5-114.2 et seq, (L. 1943, c. 149, p. 425, § 1), and after duly advertising and posting notice, held a public sale of a tax sale certificate covering lands in the township. The notice set forth the date and time of sale; that the sale was being held pursuant to a resolution of the township committee; that the subject matter of the sale was a “Certificate of Tax Sale No. 1209 covering Lot 25, Block 192, as shown on Tax Map of said Township, the owner of which land is Jonathan Johnson’s heirs, as shown in Collector’s list”; that no bid of less than $564.68 would be accepted, said sum representing the full amount dire the township upon the certificate with all interest and costs and subsequent taxes to the end of the year 1956, and that the governing body would consider confirmation of the sale at its next regular meeting after the sale.

At the sale the township attorney publicly announced that the township made no representations as to the area or acreage of lot 25 and that the township was selling its interest in the lands covered by the tax sale certificate “as is”; that the purchaser would not get a deed from the township but would only get an assignment of the tax sale certificate. It was further announced: “that no claim for any refund of any part of the purchase price for any reason whatsoever need be recognized by the Township.” Opportunity was afforded prospective bidders to examine the township tax map and to ask questions of the township attorney. No one availed himself of these opportunities.

Thereupon, 37 separate bids were made for the certificate by four interested bidders—the certificate being struck off to plaintiffs as high bidder for the sum of $2,810, plus $43.15 incidental expenses. On June 12, 1956 the township committee adopted a resolution confirming the sale and authorized the execution and delivery of the assignment of the tax sale certificate. Plaintiffs then recorded it in the Ocean County Clerk’s office.

On January 24, 1957 James W. Clayton, a person having an interest in the land, redeemed the property by the payment to the tax collector of the township of the snm of $593.35, this amount representing the amount due on the certificate with interest to the date of redemption. A certificate of redemption was then executed by the tax collector.

Plaintiffs, after making demand for the $2,810 paid by them for the assignment of the tax sale certificate, commenced the instant action for refund. The Superior Court, Chancery Division, held that plaintiffs are limited to recovering the amount paid by the redeemer and may not recover the full amount bid by them at the public sale. 49 N. J. Super. 335.

The question at issue is one of first impression in this State: May an assignee of a tax sale certificate purchased at public sale pursuant to N. J. S. A. 54:5-114.2 (a) recover from the municipality the excess of the price bid for the assignment over the amount required for redemption, in the event that the property is subsequently lawfully redeemed by the owner or the person having an interest in the property?

N. J. S. A. 54:5-114.2 provides in pertinent part:

“Tlie governing- body of any municipality may sell any certificate of tax sale including all subsequent municipal liens held by such municipality by one of the following methods:

(a) At public sale to the highest bidder. * * * ; or

(b) The governing body may from time to time determine by resolution the certificates of tax sale including all subsequent liens held by such municipality which such municipality deems advisable to sell for an amount lower than the total amount due, together with interest and costs on the certificate of sale. * * * Upon the receipt of any bid which the governing body may be inclined to accept, the governing body shall give public notice setting forth the amount of the bid for the certificate of tax sale including subsequent municipal liens together with interest and costs, the description of the several lots and parcels of land covered by such certificate of sale and subsequent municipal liens, the name of the owner of the land as contained in the collector’s list and also the total amount which would otherwise be required for redemption to the date of proposed sale and stating in substance that the governing body will accept or reject such bid at a regular meeting of the governing body and setting forth the place, time and date of such regular meeting. * * *”

The parties to this appeal lay stress upon N. J. S. A; 54:5-114.8 which states:

“When in any action, brought to bar the right of redemption, under a certificate or certificates sold pursuant to the provisions hereof, any defendant to said action or any other person in interest shall redeem said property by paying the full amount found to be due by the court, the assignee shall only be entitled to receive out of said moneys the amount actually paid to the municipality for said assignment together with lawful interest thereon from the date of payment and the taxed costs of said action, the balance shall be paid to the municipality.” (L. 1913, c. 119, p. 429, § 7.)

Plaintiffs contend that the words “out of said moneys” ought to be excised from the statute through the process of interpretation-—thus providing express statutory authorization for the refund in question. Defendant, on the other hand, asserts that the statute means what it says and that the term “out of said moneys” logically compels the conclusion that an assignee of the tax sale certificate may only recoup, upon redemption, the moneys paid by the redeemer.

In our view N. J. S. A. 54:5-114.8 is totally inapplicable to the problem at hand and enlightenment must be found from other sources. This conclusion can most readily be demonstrated by an examination into the history and basic purposes of the various methods by which a municipality may assign tax sale certificates held by it.

There are four basic statutory provisions authorizing the-sale or assignment of municipally held tax sale certificates. All of these provisions are designed to convert tax sale certificates into usable cash without the necessity of the municipality first proceeding to bar or foreclose the right of redemption under R. S. 54:5-71 et seq.; N. J. S. A. 54:5-85 et seq. or N. J. S. A. 54:5-104.29 et seq.

R. S. 54:5-112 (L. 1922, c. 227, § 1) provides that írWhen a municipality has or shall have acquired title to real estate by reason of its having been struck off and sold to the municipality at a sale for delinquent taxes or assessments, the governing body thereof may, by resolution * * *, sell such real estate at private sale to such person and for such sums, not less than the amount of municipal liens charged against the same, as shall seem to be to the best interest of the municipality. * * *”

Although not necessary to a disposition of this cause, it might be observed that R. S. 54:5-112, in effect, relates to assignments of tax sale certificates, rather than the sale of municipally-owned real estate such as under R. S. 40:6 0-26, as amended. This is made evident by the last sentence which provides, “Such sales shall not include real estate, title to which has been perfected by the municipality.” While the statute provides that the municipality shall execute and deliver a deed without covenants to the purchaser, it seems clear that the purchaser obtains, in effect, an assigpment of the tax liens subject to the equity of redemption. R. S. 54:5-112 has never been construed by the courts, and in light of R. S. 54:5-113, referred to hereafter, may presently be superfluous. We have engaged in this parenthetical digression from the ■ main stream of thought to highlight the fact that our examination of the various methods for disposing of tax sale certificates has revealed that they have been the result of piecemeal efforts to deal with specific problems as they arose. Areas of overlap and possible problems resulting from, provisions unclear in import could, it is suggested, be greatly minimized by comprehensive revision of the legislation in this field. Refer to Governor Edge’s veto message of Senate Bill No. 177 (May 1, 1945).

Apparently R. S. 54:5-112 was not sufficiently flexible to meet the diverse needs of municipalities holding tax sale certificates and desiring to assign them for ready cash, especially in those instances where the amount of the liens chargeable against the land exceeded its assessed value. Therefore, R. S. 54:5-113 (L. 1927, c. 235, •§ 1, as amended by L. 1928, c. 124, § 1) provides in part that the municipality may:

“authorize a private sale of the certificate of tax sale therefor, together with subsequent liens thereon, for not less than the amount of liens charged against such real estate. The sale shall be made by assignment executed by such officers as may be designated in the resolution. When the total amount of the municipal liens shall, at the time of the proposed sale or assignment, exceed the assessed value of the real estate as of the date of the last sale thereof for unpaid taxes and assessments, the certificates, together with subsequent liens thereon, may be sold and assigned for a sum not less than such assessed value.”

But again the legislative objective of enabling local governments to realize taxes without first expending money to foreclose or bar the equity of redemption was frustrated in certain instances, i. e., where the amount of the liens and t|ie assessed value of the property both exceeded the fair njarket value of the property. To remedy this situation the legislature in 1941 enacted N. J. S. A. 54:5—114.1 (L. 1941, c. 232,. § 1). N. J. S. A. 54:5-114.1 is exactly the same as N. J. 8. A. 54:5-114.2 except that under N. J. S. A. 54:5-114.1 the sale does not include municipal liens accruing since the date of the issuance of the tax sale certificate. The purpose of N. J. S. A. 54:5-114.1 is made clear by the introducer’s statement which reads:

“This bill provides two additional methods for disposing of tax SEjle certificates when held by a municipality. When the assessment on the land covered by the certificate and the amount necessary to redeem the certificate both exceed the value of the land, so far as 1ge purchaser is concerned, the municipality is unable to dispose of the certificate under our present law. The two methods provided by this bill will give further opportunity for disposal of such tax sale certificates held by municipalities in such case.”

In 1943, N. J. S. A. 54:5-114.2 et seq. was passed. This act not only authorized the assignment of tax sale certificates, including all subsequent liens, either at public sale to the highest bidder or at a private sale for an amount less than tfye amount of the liens, including all subsequent liens, but hud as its objective an added feature, namely, the return of tlje property to the paying tax rolls. This was accomplished byr providing for the mandatory foreclosure at the purchaser’s expense of the equity of redemption within two years from the date of confirmation of the assignment at the risk of forfeiting the purchase money. N. J. S. A. 54:5-114.4, N. J. S. A. 54:5-114.6. The introducer’s statement to N. J. S. A. 54:5-114.2 et seq. is to the following effect:

“Sound financial policy requires tlie liquidation of tax title lien delinquency and a return of the tax lien property to the ratable list. Many municipalities are without sufficient funds to liquidate their outstanding liens. The act provides not only for an easy disposition of tax sale certificates and subsequent liens, but also for an independent foreclosure by the purchaser at his own expense.”

It has been held that the nature of the right acquired by the purchaser of the tax sale certificate varies with the section under which the sale was had. The purchaser of a tax sale certificate under N. J. S. A. 54:5-114.2 acquires a far more qualified right than one who purchases at private sale for the full amount of the accrued liens or the assessed value of the property under R. S. 54:5-113. Thus, where a sale was had under R. S. 54:5-113 for an amount less than the amount required to redeem, it has been held that the assignee of the tax sale certificate, having acquired the full rights of the municipality in the land by virtue of the assignment, is entitled to the excess when the owner or a.party in interest redeems. Parlo v. Van Horn, 27 N. J. Super. 64 (Ch. Div. 1953); Kerr v. Trescher, 34 N. J. Super. 437 (Ch. Div. 1955). And it has been held that the municipality, until the final foreclosure decree, is entitled to the rents and profits and is “deemed to hold the property as security for the full payment by the property owner to it, of its taxes due.” Fidelity Union Trust Co. v. City of Newark, 11 N. J. Super. 205, 209 (Cty. Ct. 1950). See N. J. S. A. 54:5-53.1 as amended. It should again be emphasized that under N. J. S. A. 54:5-114.2 et seq. the purchaser is required to redeem within two years under penalty of forfeiture.

Viewed against the background of the full complement of the statutory alternatives for the assignment of municipally held tax sale certificates, the purposes prompting their enactment, and the differing legal incidents of each, the legislative purpose in enacting N. J. S. A. 54:5-114.8 becomes clear. It was to prevent the assignee of a tax sale certificate under N. J. S. A. 54:5-114.2 from reaping a profit in the event of redemption where the assignment was for less than the amount of the liens covered by the tax sale certificate, together with subsequent liens, interest and costs (the amount required to redeem). We have previously noted that R. S. 54:5-113 contemplates such a profit and, in the absence of an express statutory provision contained in N. J. S. A. 54:5-114.8, the same result might have been reached under N. J. S. A. 54:5-114.2. In short, the intendment and effect of the act is to authorize the municipality to discount its accounts receivable in order to return the property to the paying tax rolls within a relatively short period of time, subject to a complete rescission of the transaction in the event that the owner of the property or one having an interest therein decides to redeem.

Thus viewed, it is clear that N. J. S. A. 54:5-114.8 does not purport to deal with the situation here where the purchaser pays more than the amount required to redeem. The instant case involves a situation which apparently escaped the attention of the draftsman of N. J. S. A. 54:5-114.2 et seq., or at least was one where it was felt that the solution did not require an express statutory provision. The judicial task becomes one of resolving, within the framework of the appropriate canons of construction, the probable legislative intention, bearing in mind the admonition of Chief Justice Weintraub in New Capitol Bar & Grill Corp. v. Div. of Employment Sec., 25 N. J. 155, 160 (1957) that:

“It is frequently difficult for a draftsman of legislation to anticipate all situations and to measure his words against them. Hence cases inevitably arise in which a literal application of the language used would lead to results incompatible with the legislative design. It is the proper function, indeed the obligation, of the judiciary to give effect to the obvious purpose of the Legislature, and to that end ‘words used may be expanded or limited according to the manifest reason and obvious purpose of the law. The spirit of the legislative direction prevails over the literal sense of the terms.’ Alexander v. New Jersey Power & Light Co., 21 N. J. 373, 378 (1956) ; Wright v. Vogt, 7 N. J. 1, 6 (1951) ; Glick v. Trustees of Free Public Library, 2 N. J. 579, 584 (1949).”

In our view there are a number of reasons why the result urged by the defendant township should not prevail. Where, as here, the bid exceeds the sum required for redemption, then the rudiments of fairness and good faith dealing require that the bidder be made whole in the event of redemption. A contrary conclusion results in a forfeiture—an assumption not lightly to be indulged, especially where we are called upon to determine the respective rights arising from the dealings of the citizen and his government. Particularly apt in this connection, although expressed in another interpretive context, are the thoughts of the court in United States v. Lennox Metal Manufacturing Co., 225 F. 2d 302, 309 (2 Cir. 1955) :

“At the trial, government counsel conceded that, under the interpretation for which the government then contended, the clause would give the government, upon termination of the contract, title to thousands of dollars of property even if the government had made a partial payment of but $50. If this interpretation were correct, then the clause ‘set a skillful trap’ for the ‘unwary’ defendant, and ‘No such purpose should be attributed to the government. * * * In construing the document the presumption should be indulged that both parties were acting in good faith.’ Sylvan Crest Sand & Gravel Co. v. United States, 2 Cir., 150 F. 2d 642, 643. It ‘is not out of place to say that the government should be animated by a justice as anxious to consider the rights of the bidder as to insist upon its own.’ United States v. Purcell Envelope Co., 249 U. S. 313, 318, 39 S. Ct. 300, 301, 63 L. Ed. 620.”

It might be parenthetically observed that the inequity of the result argued by the defendant is compounded by the fact that, as we have previously noted, the assignee of the tax sale certificate is prohibited from making a profit.

Defendant contends that the bidders at the sale were knowingly taking a calculated risk in bidding more for the certificate than would be required to redeem, on the chance that there would be no redemption and title might be perfected. Thus, we are told, in effect, that the public sale of the tax sale certificate is a lottery (a result difficult to avoid where, as here, it is advertised that the bidding must start at the amount required to redeem). That the Legislature did not intend a gaming event is an assumption we feel may be freely and safely relied upon.

A return to the first principles of statutory interpretation teaches that when the lawgiver’s intent is in doubt, the court “ought to interpret the law to be what is most consonant to equity and least inconvenient.” Kerlin’s Lessee v. Bull, 1 Dall. 175, 1 U. S. 175, 1 L. Ed. 88 (Sup. Ct. Pa. 1786); Associates of Jersey Company v. Davison, 29 N. J. L. 415, 424 (E. & A. 1860). This is the doctrine of “equity of the statute” which found expression in Eyston v. Studd, 2 Plowd. 459A, 75 Eng. Rep. (1574), and from which flows the constructional aid that has taken firm roots in our jurisprudence—that the spirit of the legislative direction prevails over its terms. See Horack, Sutherland Statutory Construction (3d ed. 1943), §§ 6001 to 6007; McCaffrey, Statutory Construction, § 4, p. 8 (1953).

We might add that the “equity of the statute” rule does not, when properly applied, substitute the judicial for the legislative will, but rather in the consideration of all the material elements reaches the result probably intended by the draftsman had he anticipated the situation at hand. Indeed, to hold otherwise in the absence of considerations clearly requiring such a contrary construction, is to claim for the judiciary a monopoly on the ability to perceive the justice of a cause.

It might be argued that the possibility of a profit for the municipality was paramount in the Legislature’s mind and therefore, despite the considerations previously alluded ■ to, the result urged by the defendant is correct. As we have previously noted, at the time of the enactment of N. J. S. A. 54:5-114.2 et seq., the basic objective of the Legislature was to afford municipalities, who could not sell tax sale certificates held by them because the amount of the liens and assessed value exceeded the fair market value of the land, an opportunity to convert such certificates into usable cash (albeit at a discount) without the necessity of first foreclosing and to have the property come into the hands of one able to pay the future liens. It is a question of serious doubt whether the Legislature even thought of the possibility of a profit in the assignment of the tax sale certificate. That fact would not, in the absence of an express statutory provision, preclude the possibility of a yield to the municipality. Assuming for purposes of argument that the intention of the Legislature was to provide the greatest possible yield to the municipality, it might be inquired, how may that result be reached? Surely not by construing the statute to provide for a forfeiture upon redemption, for in that event bidding would be stifled. The prospective bidder would not, in most instances, bid .much beyond the amount of the liens .owing, even though that amount is far less than the fair market value of the property. It may be that in an isolated instance the unwary or reckless bidder will bid a price substantially in excess of the amount required to redeem and the municipality will gain a windfall. But such instances would only lend emphasis to the long range effect of restraining competitive bidding—and the municipalities of the State will lose far more where assignee of the tax sale certificate (having purchased for less than the fair market value) does foreclose the equity of redemption.

There are other legislative provisions which buttress the view that the legislative intent was that the excess over the amount required to redeem be returned to the assignee of the tax sale certificate. It has been held that the statutes forming a portion of a comprehensivo plan for assessment, levying and collection of realty taxes are in pari materia and must be read together. Nordell v. Mantua Tp., 45 N. J. Super. 253 (Ch. Div. 1957); Kerr v. Trescher, supra. An analogous situation to the instant one in the statutory scheme is provided in R. S. 54:5-32, dealing with the original sale of tax sale certificates. That section provides:

“The sale shall be made in fee to such person as will purchase the property, subject to redemption at the lowest rate of interest, but in .no case in excess of eight per cent per annum. If at the sale a person shall offer to purchase subject to redemption at a rate of interest less than one per cent, he may, in lieu of any rate of interest to redeem, offer a premium over and above the amount of taxes, assessments or other charges, as in this chapter specified, due the municipality, and the property shall be struck off and sold to the bidder who offers to pay the amount of such taxes, assessments or charges, plus the highest amount of premium.”

Thus, when the bidding falls below one per cent interest, the bidder may bid a premium. B. S. 54:5—33, as amended, then specifically provides in part:

“* * * Any premium payment shall be held by the collector and returned to the purchaser of the fee if and when redemption is made. If redemption is not made within five years from date of sale the premium payment shall be turned over to the treasurer of the municipality and become a part of the funds of the municipality.”

It is difficult to discern why the Legislature would intend that a purchaser of the initial tax sale certificate should recoup his premium, and yet, that an assignee of a tax sale certificate held by the municipality (because no one would bid for it in the first instance, B. S. 54:5-34) should forfeit the premium. This difficulty is heightened by the fact that the assignee of the municipally held tax sale certificate under N. J. 8. A. 54:5-114.2 receives a more qualified and less valuable right than the original purchaser, for instance, the fact that in the former instance foreclosure must be within two -years, while in the latter the purchaser has five years within which to foreclose, in order to avoid forfeiture.

That the Legislature intended the result urged by the plaintiffs is further strengthened by the enactment in 1950 of N. J. S. A. 54:5-114.9 (L. 1950, c. 45, § 1) a supplement to N. J. S. A. 54:5-114.2 et seq. That section provides that an assignee of a tax sale certificate under N. J. S. A. 54:5-114.2 et seq., who has obtained a legal title by voluntary conveyance from the owner and who at the public sale of the tax certificate shall have paid a sum not less than the full amount due on the certificate, together with all interest, costs and subsequent taxes, may apply to the municipality for a cancellation of the tax sale certificate; “provided, such application is made within five years from the date of said public sale and the municipality, prior to such application, shall not have resold such tax sale certificate; and provided further, that in no case shall the municipality refund any of the moneys paid to it for such tax sale certificate at public sale thereof under this act.” (Emphasis supplied.)

If, as defendant contends, N. J. S. A. 54:5-114.2 et seq. contemplates that the assignee is not entitled to recoup the excess of the amount hid over the amount required to redeem, then the second proviso in N. J. S. A. 54:5-114.9 would have been unnecessary. That proviso seems to presuppose that in the event of redemption the assignee would be entitled to a refund.

The provision for forfeiture of the right to a refund in the event that the assignee acquires the title by a private deal with the owner readily squares with the thesis1 that such a forfeiture should not be permitted in the event of redemption. Where the assignee bids more than the amount required to redeem, but subsequently successfully forecloses the equity of redemption, the municipality is entitled to the purchase price. The evident purpose of N. J. S. A. 54:5-114.9 is to prevent the assignee from privately dealing with the owner in order to save the expense of foreclosing and in addition obtaining a refund of the excess over the amount required to redeem, since, had the assignee been forced to foreclose, such refund would not have been available. Thus, the proviso was necessary in order to prevent the municipality from being defrauded under the specific circumstances dealt with in N. J. S. A. 54:5-114.9, and the fact that it was felt essential to expressly provide that the assignee was not entitled to a refund lends credence to the conclusion that such a refund was contemplated where, as here, the property is redeemed.

Eor all of the reasons advanced we hold that the Legislature intended that the assignee of tax sale certificates under N. J. S. A. 54:5-114.2 et seq. may recover from the municipality the full amount bid for the assignment (in this case the sum of $2,810) in the event the property is subsequently redeemed.

At the sale the township attorney announced: “that no claim for any refund of any part of the purchase price for any reason whatsoever need be recognized by the Township.” Plaintiffs candidly admit the good faith of the defendant in laying down the condition. We by-pass any comment on the possibility that the fair implication of the word “need” in the condition renders it arbitrary and illusory, preferring rather to rest our decision on what seems to us more elemental grounds.

Irrespective of the good faith of the defendant in imposing the condition of sale, that condition is in conflict with the implied provision of the statute that the purchaser is entitled to a refund.

It is a settled proposition that “That which is clearly implied from the purpose which underlies a statute is as much a part of the law as that which is expressed. Brandon v. Board of Commissioners of Town of Montclair, 124 N. J. L. 135, 143 (Sup. Ct. 1940), affirmed 125 N. J. L. 367 (E. & A. 1940).”, Ranney v. Istituto Pontificio Belle Maestre Filippini, 20 N. J. 189, 197-198 (1955), and a fortiori has the same legal effect as if it had been expressed. We are not concerned here with a legislative vacuum which might be filled by resort to the harsh common law concept of caveat emptor. Rather we are concerned with whether the defendant may lawfully append a condition to the sale in contravention of the legislative right to a refund. It is firmly established that municipal liens, and the rights arising therefrom, are solely statutory in origin and are fixed and determined by the statute. See, e. g., Nordell v. Mantua Tp., supra; Nelson v. Naumowicz, 1 N. J. 300, 302 (1949); Absecon Land Co. v. Keernes, 101 N. J. Eq. 227, 231 (E. & A. 1927). It is elementary that any attempt by a municipality to interpolate or add material conditions in contravention of the legislative grant pursuant to which it purports to act is ultra vires. See, e. g., Edwards v. Mayor & Council of Borough of Moonachie, 3 N. J. 17, 21-22 (1949). This is especially true of any attempt to materially varv or alter the terms and conditions set forth by the Legislature with respect to tax sales. 16 McQuillin, Municipal Corporations (3d ed. 1949), § 44.159, and cases cited therein.

The primar}" problem is to construe the statute. If, as we have demonstrated, the statute contemplates a refund, the municipality cannot will otherwise.

The judgment appealed' from is reversed and the cause remanded for entry of a judgment consonant with the views expressed in this opinion. The parties will bear their own ■ costs.