33 Fla. 204 | Fla. | 1894
(after stating the facts:)
The subsequent tax deed to Mary W. Castellaw based upon a tax sale in 1878 for non-payment of the taxes" in 1877, without being successfully impeached,, authorized a recovery on the part of the plaintiffs. Spratt vs. Prince, 18 Fla., 289. In the body of this-tax deed, following the description. of the land conveyed, is the following recital, viz: “Assessed to H. P. and J. W. Lucas.” A prior recorded deed to them for the land was also introduced. The object of introducing the tax deed to Greeley based upon a tax sale in 1873, for taxes assessed in 1871, was to show that-
If it be conceded that the recital in plaintiffs’ tax deed showed that the land was assessed to H. F. and J. W. Lucas in 1877, and also that the tax deed offered by defendant was prima facie evidence that Greeley, and not the Lucases, owned the land that year, there was nothing to show when the deed was.
Defendant, after making proof that H. F. and J. W. Lucas did not, as a matter of fact, occupy the land in 1877. again offered the tax deed in evidence, and the court again refused to admit it. If H. F. and J. W. Lucas neither owned the land in 1877, nor were then in the occupancy of it, the assessment upon which plaintiffs’ deed was based was void, and the deed itself passed no title. L’Engle vs. Florida Central & Western R. R. Co., 21 Fla., 353; L’Engle vs. Wilson, Ibid, 461. It is contended by counsel for appellees that the recitals in the deed introduced by them furnish no evidence that the land was assessed to H. F. and J. W. Lucas in 1877. It is insisted that the form of the deed prescribed by the statute for use when plaintiffs’ deed was executed nowhere contained the name or names of the party or parties to whom the land was assessed for taxes, for the non-payment of which it was sold, and that the recital in the deed before us in reference to the assessment to H. F. and J. W. Lucas was unauthorized and binds nobody. If the recital in the deed in this respect be rejected as . surplusage, th e prima facie evidence afforded by the
It is further insisted that as the evidence showed a •conveyance of the land to H. F. and J. W. Lucas in 1869, and that they claimed to own it until 1882, when they sold it to the Florida Savings Bank and Real Estate Exchange, an assessment to them in 1877 was proper and legal.. The tax deed to Greeley, recorded in June, 1885, was prima facie evidence of title in him, and, without evidence to impeach it, divested all the title out of the Lucases acquired by the conveyance to them in 1869. After the recording of Greeley’s tax •deed in 1875 the record evidence then was that he was ■owner, and as the Lucases were not in possession, the land could not on this showing have been legally assessed to them. The deed offered by defendant would have furnished prima facie evidence that the recorded title of the Lucases had been extinguished, and a claim ■of ownership of the land without avoiding in some way the tax deed, would not have made them owners. ■Conceding the prima facie validity of the tax deed to Greeley, he was owner in 1877, and not the Lucases.
Another objection to the introduction of the deed is that no evidence was introduced to show that Greeley still owned the land under the tax deed issued to him in 1875, and for aught that appeared, he may have quit-claimed it back to the Lucases before 1877. In
Another objection is that defendant and plaintiffs claim title through and under the same source of title, and that defendant can not be permitted to show title in a third party. This contention is based upon the evidence of Greeley that the ■ Lucases claimed to own the land in controversy in 1882, when they sold it to the Florida Savings Bank and Real Estate Exchange, and that the bank sold it to Cash, of whose estate defendant is administrator. It is true Greeley testified that the Lucases claimed to own the land down to-
It is further objected by counsel for appellees that the tax deed offered by defendant below should have been executed by Edwin Higgins, as clerk of the Circuit Court of Duval county, under the seal of that court, and not as county clerk, with the seal of the county court attached. It is insisted by appellant’s. counsel that this objection was not raised in the trial court, and can not be made here. It does not appear-that the objections made in the Circuit Court, and the rulings of the court thereon, rejecting the deed, in
The court erred in refusing to permit defendant to introduce the tax deed to J. C. Greeley, and for this ruling the judgment must be reversed for a new trial, -and it is so ordered.