32 N.J. Eq. 386 | N.J. | 1880
The opinion of the court was delivered by
The appellants, the mayor and aldermen of the city of Paterson, are the defendants in a suit to foreclose a mortgage on premises in that city. By the decree below, the taxes assessed against the mortgaged premises for the years 1876, 1877 and 1878, under the city, charter, were adjudged to be subsequent and not paramount liens to the mortgage, which was executed and recorded before the taxes were assessed. The controversy relates to this part of the decree, and turns upon the construction of the charter passed in 1871 (P. B. 1871 p. 808), before the making of the mortgage. . The question to be decided is, whether the provisions of this charter disclose a legislative intent to postpone the lien of the mortgage to the lien of taxes subsequently assessed. I am of opinion that they do.
In Hopper v. Malleson, 1 C. E. Gr. 382, a special act relating to the county of Passaic, under which taxes had been assessed, was held not to show such intent. In that case, no provision was made enabling the mortgagee to redeem the premises after sale, while such provision was made in favor of the owner of the fee. This difference was pointed out by the chancellor as inconsistent with the ordinary ideas of justice, if the estates both of the owner and
The case of Morrow v. Dows, 1 Stew. 459, was decided upon statutory provisions similar to those in Hopper v. Malleson. In both cases the opportunity to redeem was given only to the owner, and they are, therefore, broadly distinguishable from this. The main stress of the argument against the priority of the tax lien in the present ease, was put upon the ground,
The view thus taken is promotive of the public welfare involved in the collection of taxes, while the opposite construction would be seriously detrimental.
The decree in this behalf should be reversed.
Decree unanimously reversed.