In re the acquisition of lands of Lizzie A.

Pitney, Y. C.

Counsel for the railroad company and for the city both insist that there is no difference, for present purposes, between a lien for taxes and a mortgage or judgment lien, and that the amount awarded by commissioners or by the verdict of a jury on appeal represents the whole value of the land without any deduction for liens of any sort.

On the other hand, counsel on behalf of the Sleepers claims that the contention of the other side, if acceded to, results in the adoption of a new mode of collecting taxes not recognized by law, and that the city is confined to its statutory remedy of selling the land to pay the taxes.

I think the latter argument not sound. The question is whether the Central Railroad Company is not in law entitled to-have all liens upon the land paid out of this fund. If it had made the city a party to the condemnation proceedings there would have been, as it seems to me, no doubt about its right in that respect, and that right would have been fully protected by such action. But it also seems to me quite clear that the eighth section of the act above cited provides a method by which the condemning corporation may, without first searching for lienors and making them parties, have all liens upon the land *69 paid out of the fund by paying it into court and giving notice to those parties of such payment.

The question, then, comes to this: is there any essential difference between the-lien of taxes upon land and the lien of a mortgage or judgment? Eor it is abundantly established by authority in this state that, in a case like this, an award is presumed to include the whole value of the land, free of encumbrance, and that the mortgagee or other lienor is entitled to be paid out of the fund, and the party acquiring the land by condemnation proceedings is entitled to have such payment made out of the fund in exoneration 'of the land acquired. The leading case is Platt v. Bright, 4 Stew. Eq. 81, and, on appeal, 5 Stew. Eq. 362. And see Gray v. Case, 6 Dick. Ch. Rep. 426. I think’there can be no doubt that the lien for taxes stands on the same ground as other liens. This seems to be the well-settled practice in New' Jersey and is illustrated in the recent case of Burnet v. Dean, 15 Dick. Ch. Rep. 9; on appeal, 49 Atl. Rep. 503, which was a foreclosure of a mortgage, and the municipality of South Orange was made a party by reason of its claim of lien for taxes and set up its claim by answer, and it was adjudicated upon and a decree made for certain taxes, giving them precedence over the complainant’s mortgage.

I will advise a decree accordingly.