Waterman v. Township of Shrewsbury

The opinion of the court was delivered by Kalisch, J. The prosecutor, as trustee of the heirs of William W. Conover, deceased, obtained a writ of certiorari in aid of an action of ejectment, commenced by him against Charles J. Parker, to recover the possession of certain lands alleged to belong to the prosecutor, for the purpose of bringing under review the validity of an alleged tax sale of said lands, made by the township of Shrewsbury, in the county of Monmouth, to Charles J. Parker, and evidenced by two certificates of sale, under Ihe date of August 12th, 1898, and August 2d, 1902, respectively, for unpaid assessment of taxes for the year 1897, assessed upon the lands of the estate of Charles [287] Jobes. The property in question, as described in the certificates of sale under date of August 12th, 1898, is as follows: “Being house and lot on Pearl street, Pair Haven, assessed and advertised as the property of Charles Jobes estate was struck off and sold to Charles J. Parker,” &c. The certificate of sale made and executed under the date of August 2d, 1902, and which recites that it is made in correction of the certificate of sale made and executed under the date of August 28th, 1898,' describes, the property as follows: “All those parcels or lots of land and premises situate in the township of Shrewsbury, county of Monmoulli and State of Hew Jersey, hereinafter described, viz.: Being the real estate assessed and advertised as the property of the Charles Jobes, estate, consisting of house and lot on west side of Pearl street and Main road, Pair Haven, store and lot on corner of Pearl street and Main road, Pair Haven, one lot on west side of Normandy street, Pair Haven, and two lots on east side of Normandy street, Fair Haven, were struck off and sold to Charles J. Parker,” &c. Prom the assessor’s field book of the township of Shrews-bury for the year 1897 it appears that the following assessments were made against the estate of Charles Jobes and one Hester Jobes in the manner following: ■ “Jobes, Charles Est. “1 H. & L. on W. Side Pearl St. (P. H.) “Store & L. on Cor. Pearl St. Main Eoad. “2 Lot at (P. H.) “Jobes Hester. “H. & L. on W. Side Pearl St. (P. H.)” There is an utter absence of any appraisement of the value of the lands by the assessor, as required by Gen. Slat., p. 3294, § 68. It appears that none was ever made. This fact alone is sufficient, under the reasoning in Baxter, prosecutor, v. Mayor and Aldermen of Jersey City, 7 Vroom 188, to render the assessment invalid and a sale by virtue thereof nugalory. Prom the evidence before us, it further appears that by the collector’s return of delinquents for unpaid. taxes of 1897, with a list containing the names of the persons delinquent in [288] paying their' taxes assessed for that year, is the name of “Jobes Est. Charles 21.06.” The tax warrant, in pursuance of which the sale was made, in describing tire properties and amount of tax due, describes the property in question: “Jobes, Charles, Estate, house and lot on Pearl Street, Pair Haven, 21.06.” The advertisement of the sale was in the identical description with tire exception that the word “estate” was abbreviated. And under this description the certificate of sale under August 12th, 1902, purports that there was sold and conveyed to Charles J. Parker, as if appears by the evidence, six parcels of land’ in Pair Haven, located on different streets, some of them having buildings on them and not adjacent to each other. The rule laid down in Warshung v. Hunt, 18 Vroom 256, that the description in the advertisement of sale should be such as to warn the owner for what property he is assessed, and such as to secure a fair sale by showing to purchasers what property is to be sold, is applicable to the cáse before us. It is palpable that the advertisement of the sale of a house and lot on Pearl street was no notice to purchasers that five other parcels of property, some of them with buildings upon them, at different locations, were also to be sold. The advertisement was misleading and injurious to the owner of the properties as well as to prospective purchasers. We think this defect in the advertisement is, in itself, sufficient to invalidate the sale and the certificates given in pursuance thereof. It is further established, by the proof in the case, that the assessment was made in the name of the estate of Charles Jobes, whereas, there was no such estate, the title to such lands being vested in other owners. One Esther A. Manning had a life estate therein, and the prosecutor, as executor and trustee of the heirs of William W. Conover, deceased, owned the fee. There is no pretence that any notice of the proposed sale of lands had been given to the real owners, as required by section 9 of the act of 1898. Pamph. L., p. 157. The failure to comply with the statute in that respect invalidates the sale. State, Fleischauer, prosecutor, v. West Hoboken Township, 11 Vroom 109; Woodbridge v. State, Allen, prose [289] cutor, 14 Id. 262; Landis v. Vineland, 32 Id. 424; State, Brooks, v. Union Township, 39 Id. 133. There is no attempt made by the defendant, in liis brief, to justify the regularity of the proceedings under which the properties in question were sold, except, by a few general statements to the effect, that the reasons urged by the prosecutor for setting aside the proceedings are not sustained by the evidence. We think, from an examination of the evidence, that it abundantly appears that the proceedings were irregular and defective in many respects, so as to invalidate the sale and to render the certificates given in pursuance thereof nugatory. The argument advanced by the defendant is that the prosecutor is not entitled to present his writ, because the same was not applied for within three years after the date of the sale of the lands, as provided by the act of 1903. Pamph. L., p. 348. We think the prosecutor is entitled to prosecute his writ, for two reasons: First. Because it is in aid of an action in ejectment, under which circumstance, it has been repeatedly held, that lapse of time cannot be set up as against the issuance of the writ. State, Baxter, prosecutor, v. Jersey City, 7 Vroom 188; State, J. H. McCarthy et al., prosecutor, v. Mayor, &c., of Jersey City, 15 Id. 136; Brooks v. Township of Union,, 39 Id. 136; 4 Comp. Stat., p. 4679, § 15. Second. The statute invoked as a bar is not applicable where no assessment has been laid or proper sale made. Walsh v. Newark, 49 Vroom 168. The proceedings and ceriifieates of sale must be set aside.