Dvorkin v. Township of Dover , 29 N.J. 303 ( 1959 )

Weintkaub, 0. J.

(concurring). I join completely in the opinion of Mr. Justice Bubling. My purpose here is to add some observations with respect to the suggestion that even though the statute does not contemplate a forfeiture in the event of redemption, yet that result must follow because of a condition first announced at the time of the actual sale.

I would not read the condition to have any relation to the subject of redemption. The words used were that “no claim for any refund of any part of the purchase price for any reason whatsoever need be recognized by the Township.” They were expressed immediately after a statement that there were no representations as to the area or acreage or the physical condition or location; that the sale was of the certificate and the township’s interest in the lands covered thereby “as is”; and that the purchaser would receive an assignment of the certificate and not a deed. The critical condition, fairly viewed, related to the conditions of sale which preceded it. No reference was made to the subject of redemption.

I find no stipulation or concession that plaintiffs understood the condition to mean there would be no refund in the event of redemption. Nor did the trial court so find. In their brief before us plaintiffs urged there was no proof that they or any other bidder understood the condition to have the purport thus attributed to it. And defendant in its brief before us relied solely upon its interpretation of the statute, with no suggestion that if that interpretation is erroneous, it ought to prevail upon some other basis. At any rate, I will assume for discussion that the condition in question was both intended and understood to mean that there would be no refund in the event of redemption.

Of course, if that view be accepted, it should logically follow that plaintiffs could not obtain a refund even in the amount paid in redemption, because the condition is absolute in terms—it would bar any refund whatever. Hence it should follow that defendant may retain both the amount of the bid and what it received from the owner who redeemed. Indeed, if the cases cited in the dissent are applicable, it would be illegal for defendant to part with a penny of the grand total.

I see no relevancy here of the doctrine of caveat emptor or the subject of quitclaim and warranty deeds. The issue is not whether plaintiffs may complain that defendant had a lesser interest than it purported to sell or that plaintiffs misunderstood the quality or quantum of what was sold. Bather the question is, what effect should be given to a subsequent event, i. e., redemption by an owner or party in interest? Nor do plaintiffs suggest that defendant warranted there would be no redemption and hence should be liable to plaintiffs for the gain they would have made if no redemption had occurred. All that plaintiffs want is a return of their money because the act of redemption by a third party prevented the parties to the sale of the certificate from completing their respective undertakings under the statute, namely, a foreclosure by plaintiffs within the stipulated time and the delivery by defendant to plaintiffs of the tax sale certificate after the entry of judgment of foreclosure as required by N. J. 8. A. 54:5-114.7.

The crux is whether, if it be agreed that the Legislature did not intend redemption to result in forfeiture, a municipality may make it a term of the sale. The terms of the sale are legislatively prescribed. They appear in N. J. 8. A. 54:5-114.2 (a) as a statement of what shall be set forth in the public notice of sale. Those terms contemplate a sound, businesslike transaction. The issue then becomes whether a municipality may, as Mr. Justice Bukling points out, convert the transaction into a gambling event.

If the condition here involved may be imposed, it would follow that a municipality may provide that the sum paid shall be forfeited upon any eventuality it may select, be it the appearance of the ground hog or the outcome of the world series, or stipulate that the price shall be double or nothing on the spin of a wheel. These suggestions are bizarre, of course, but in kind they are indistinguishable from a stipulation that a forfeiture shall depend upon the future behavior of the owner of the property. There can be no power in a municipality to convert a sale into a raffle, and it would be against public policy to enforce any such attempt. That kind of conduct can only defeat the objective of competitive bidding. The Legislature required competitive bidding to the end that the municipality would reap the greatest possible yield. A municipality may not fritter away municipal assets by wager. I say “fritter away” because the small windfall which the municipality would gain in this case is picayune compared with the losses which in the long run must ensue from the inevitable restraint upon bidding.