108 N.J. Eq. 297 | N.J. Ct. of Ch. | 1931
This matter is now before the court on complainant's application to strike out an answer and answer in lieu of plea filed in behalf of the defendant John Chopke. Complainant holding tax sale certificates for certain lands situate in the city of Trenton, described in the bill, filed its bill herein to foreclose defendant's right of redemption of such lands. Complainant prays that the defendants be required to redeem said lands, or, in default of redemption, that they be foreclosed of all rights therein. Section 49 of chapter 237 of the laws of 1918, known as "Tax Sale Revision," as amended by chapter 139 of the laws of 1929, provides: "On filing such bill the right to redeem shall exist and continue until barred by the decree of the court of chancery." A memorandum-brief submitted by complainant's counsel recites: "However inartistically and intechnically the defendant Chopke has endeavored to meet the complainant's bill there can be no doubt that the defendant Chopke has until the final decree to redeem." In view of complainant's aforesaid concession I deem it unnecessary to consider and determine the alleged faults of defendant's answer. A consideration and determination thereof would serve no useful purpose herein. Counsel for the respective parties agree that the only question remaining for determination herein is the amount required to be paid on redemption. A master has reported the amount due to complainant upon redemption, and has included therein two items of search fees of $10 each, as expenses. Complainant urges that it is entitled to a search fee and counsel fee commensurate with services rendered by it, in addition to other fees and expenses allowable by law, and relies therefor upon the statute aforesaid which provides inter alia: *299
"After the bill in equity has been filed, redemption shall be made in said cause only, provided notice of the suit has been filed in the office of the collector of taxes, and the court shall, upon application at any time after bill filed, allow costs, which shall include reasonable fees for an examination of the title to the lands described in the bill filed, disbursements incurred by the purchaser and his counsel, and counsel fees commensurate with the services rendered, in addition to the other fees and expenses in this act provided."
It appears herein that redemption from the tax sales of September 9th, 1926, and September 9th, 1927, for which complainant holds certificate, was sought in behalf of defendant John Chopke prior to the commencement of complainant's suit. The bill of complaint was filed July 20th, 1929. A notice of the filing of the bill was filed with the receiver of taxes of the city of Trenton on August 1st, 1929. Subpoena returnable August 23d 1929, tested August 9th, 1929, was served on the defendant John Chopke August 14th, 1929. Although the filing of the bill of complaint might ordinarily be regarded as indicative of the commencement of a suit, it has been repeatedly held that a suit in chancery is not commenced until process of subpoena is issued after the filing of the bill. Haughwout v. Murphy,
I will advise an order denying the complainant's application to strike out the answer and answer in lieu of plea filed in behalf of the defendant Chopke, and as the complainant has conceded the right of said defendant to redeeem the premises described in the bill of complaint, upon payment to it of the amount required to be paid by law, and the question of the allowance of the search fee and counsel fee urged by complainant as allowable to it under chapter 139 of the laws of 1929 has been fully argued and is herein determined adverse *303 to complainant, I will advise a decree that the complainant cancel and discharge the tax sale certificates described in the bill of complaint upon the defendant making payment to complainant of the amount stated in the master's report aforesaid. No costs or counsel fees will be allowed herein to either of the parties.