Newark v. Cook

133 A. 875, 99 N.J. Eq. 527, 14 Stock. 527, 1926 N.J. Ch. LEXIS 117
CourtNew Jersey Court of Chancery
DecidedJune 24, 1926
StatusPublished
Cited by13 cases

This text of 133 A. 875 (Newark v. Cook) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Newark v. Cook, 133 A. 875, 99 N.J. Eq. 527, 14 Stock. 527, 1926 N.J. Ch. LEXIS 117 (N.J. Ct. App. 1926).

Opinion

For the purpose of widening Washington street the city of Newark condemned the two four-story stores at the northwest corner of Market and Washington streets, Newark, and paid the award into court, $479,550. Both buildings were taken and razed, although only half the land was taken, that which lies southeasterly of a line extending from the northerly corner of the lot on Washington street to the westerly corner on Market street. Cook et al. are the owners in fee of a two-thirds undivided interest, and the holders of a tax title (called that for convenience) for the term of two hundred years, expiring in August, A.D. 2057, of the remaining one-third, the fee of which is in Charles A. McEuen. There are numerous claims upon the fund by a tenant and sub-tenants, and by McEuen, who takes the position that the tax title is invalid for irregularities in the proceedings on which it is based, and for fraud in its procurement, and that the court in these proceedings may hold it to be of no effect.

The title in 1850 was in one Leavitt, who conveyed an undivided two-thirds interest to Charles H. Sherman and a one-third to McEuen and his brothers and sisters, by separate deeds, February 13th, 1850. McEuen succeeded to his brother's and sister's interest by inheritance. Title to the Sherman two-thirds' interest passed to William H. Sherman and by mesne conveyances to Nehemiah Perry, and from Perry to Martin Burne in 1866. About the same time Burne acquired the tax title. Burne remained in possession until his death in 1912, and Cook et al. hold by devise from him. On August 24th, 1857, the property was sold by the city of Newark for an unpaid sewer assessment to John R. Weeks *Page 529 for two hundred years. He assigned to Perry and Perry to Burne. At the time of the assessment and sale the fee was in Abraham H. Sherman (who was also in possession) and the McEuen children, then infants. The assessment map designated Abraham H. Sherman as the owner of the lot; the McEuens were not parties to the proceedings. The deed to the McEuens did not come to their knowledge until 1869, and in 1870 they brought an action in the supreme court against Burne to recover possession of their interest, and judgment was rendered against them. The "phonographer's" transcript of his notes of the trial at the September term, 1870, of the Essex circuit, is in evidence, without objection, and from it it appears that Abraham H. Sherman, the co-tenant of the McEuens, furnished Weeks, the purchaser of the tax title, with the purchase price the day after the sale, and that Weeks, at the instance of Sherman, assigned the certificate of sale to Perry in 1861, who assigned it to Burne in 1866. Mr. Justice Depue, presiding, held the certificate of sale to be in due form, and that the proceedings upon which it was founded could not be attacked collaterally, but only on review by certiorari as provided by the then recent act of 1869, now section 15 of the Sale of Lands act (Comp. Stat. p.4679); that the question of fraud, because Sherman procured the tax sale to Weeks instead of paying the assessment, or of a resulting trust, because the purchase price was paid by Weeks, the co-tenant, was cognizable only in equity, and left to the jury the single question whether the money was furnished by Sherman to Weeks to procure the certificate of sale, or paid to him to satisfy and extinguish the tax title, and, if the latter, they must find for the plaintiff; and the jury found that it was not so paid. Nothing further was done until just before the award in these proceedings (1925), when McEuen applied to the chief-justice for a writ of certiorari, and, being refused, applied to the supreme court, and upon denial on the ground of laches (In re McEuen, 4 N.J. Adv. R. 548) appealed to the court of errors and appeals, where it is now pending. *Page 530

If by the tax sale McEuen's property was taken without due process of law, i.e., without notice, and, consequently, in violation of his constitutional rights to be heard, as he claims, his remedy is by certiorari. This objection to the tax sale would have been available in ejectment before the act of 1869, which made it reviewable by certiorari only. Baxter v.Jersey City, 36 N.J. Law 188. The act did not, as suggested, deprive him of his remedy by ejectment; it simply regulated the legal steps to the remedy. Bozarth v. Egg Harbor City,85 N.J. Law 412. If McEuen is entitled to relief in these proceedings it cannot be granted until the certificate of sale is invalidated bycertiorari. Until then it must be taken at its face value. The act applies as well to this court as to the courts of law. Jurisdiction to set it aside is exclusively in the supreme court.Nugent v. Hayes, 94 N.J. Eq. 305; Sutton v. Maurice RiverTownship, 93 N.J. Eq. 484. McEuen's right to a review bycertiorari, for invasion of his constitutional rights, was co-extensive with his right of action in ejectment, limited by statute to twenty years. Comp. Stat. p. 3169. It was not abridged by later legislation reducing the time to three years and now to eighteen months. Comp. Stat. p. 254; Groel v.Newark, 78 N.J. Law 142. The refusal of the supreme court to grant the writ on the ground of laches is not, as counsel states in his brief, "an invitation" to equity to intervene, and it does not argue that this court has complete jurisdiction to hear the controversy, because in this particular case the law has proved "deficient." The law is simply unwilling. Equity has jurisdiction in cases where the law cannot, not where it can, but will not, grant relief.

McEuen is in no better position on the purely equitable grounds of fraud of his co-tenant in procuring the tax title to another, or of resulting trust because the purchase by his co-tenant inured to his benefit. Weller v. Rolason, 17 N.J. Eq. 13. The only evidence offered to sustain the charge of fraud or the claim of a resulting trust is the transcript of the testimony taken at the trial of the ejectment suit, and McEuen's offer to testify to what occurred — that is, to repeat *Page 531 what appears by the transcript to have taken place, and the check of Sherman to Weeks of August 26th, 1857, for $178, the amount of the assessment. It was there proved that Sherman supplied Weeks with the purchase-money for the sale certificate. Though the transcript was admitted in evidence without objection, it is without legal effect. It has no place in our law of evidence as an official document and is without probative value. Its recital of legal testimony in that suit is but hearsay testimony here. And even if the transcript were treated as verity, as establishing the fraud or resulting trust, the charge could not be entertained. McEuen's claim to relief in this respect rests upon a latent equity, enforceable, if timely pursued, but not if it appeared that Burne was a purchaser for value without notice.Bridgewater v. Ocean City Asso., 85 N.J. Eq. 379; affirmed,88 N.J. Eq. 351. It is too late to press it now. He slept on his rights too long before asserting the fraud or the equity against Burne or those who succeeded to the title, after he was fully apprised of his legal and equitable rights by Mr. Justice Depue fifty-six years ago. The proofs in the case are buried.

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Cite This Page — Counsel Stack

Bluebook (online)
133 A. 875, 99 N.J. Eq. 527, 14 Stock. 527, 1926 N.J. Ch. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newark-v-cook-njch-1926.