45 Fla. 507 | Fla. | 1903
Lead Opinion
This cause was duly considered by Division B, and there being a difference of opinion among its members as to the proper disposition'of the case, it .was deferred to the court en banc for decision.
On April 25, 1898, appellee filed its bill in the Otcange county Circuit Court ■ alleging that it was the owner in
From the abstract it appears that the grounds alleged in the bill for cancellation of the several tax certificates, after it had been partly dismissed to conform to the ruling on demurrer, were as follows: As to certificate No. 107, sales of 1898, and certificate No. 203, sales of 1895, that the city tax assessor made the affidavit required by law before the city clerk who was not an officer authorized to administer oaths. As to certificate No. 175, sales of 1896, “Because the notice of said tax sale was published in two newspapers, to-wit:' Tlio Orlando Star and the Daily Reporter, whereas the law requires that it be published in a
The grounds of demurrer that were overruled were as follows: The affidavits before the city clerk were a sufficient compliance with law, and if not, «he defect was not so material as to make the assessments or sales' based thereon invalid. The publication of notice of tax sale in two newspapers was not thereby invalid. There, is no equity in complainant’s bill. Municipalities in this State are not required to file report of tax sales with the State Comptroller.
The bill seeks to cancel, as clouds upon title, tax certificates held by a city based upon its own sales for city taxes. If under the law the city was not authorized to take a certificate of sale for its own taxes, or if it had such power, but no deed could issue to the city upon it, or if it could take a deed, but such deed would not b'e prima facie evidence, perhaps the jurisdiction of a court of equity could not be invoked to cancel such a certificate, for if the city could not take a certificate upon the tax sales, such certificate would be void upon its face, ayid, therefore, would not be a cloud upon title, or if such a 'certificate though1 valid could never become the basis of a deed that would prima facie convey a valid title, or if in proving title under a deed issued thereon the evidence necessary to be produced by the claimant would inevitably show 'the defects complained of in the bill, the certificate would not be a cloud upon title so as to authorize its cancellation by a court of equity. Hughey v. Winborne, 44 Fla. 601, 33 South. Rep. 249. The court is of opinion, however, that a city could become the holder of certificátes such as the bill describes; that it could pro
We are also of ©.pinion that a tax deed to the city duly executed by the clerk of the Circuit Court upon a certificate of sale for city taxes under the statutes applicable to the certificates mentioned in the bill would be prima facie evidence to the same extent as deeds executed upon certificates made in pursuance of sales for State and county taxes. In order to understand the reasons for so holding- it will be necessary to refer to some of the earlier statutes governing- the issuance and effect of tax deeds.
Chapter 197(1. act of 1874, by section 50 required city tax collectors to proceed substantially in the same manner in the collection of taxes and sale of lands for nonpayment of city iaxes as collectors of revenue, and this of course included the requirement of section 54 that certificates be issued upon sales tk>r city taxes. -Sections 57 and 58 provided for the redemption of certificates for city as well as State and county taxes, and section 59 provided for the purchase of “any such tax certificates held by the State.” with a proviso that the purchaser should purchase all the certificates held by the State, city or town upon the same property, &c. Section 00 provided “that on the presentation of such certificate or certificates of sale to
Many well considered cases hold that if a tax sale be void by reason of the failure to-do some essential thing required to be done in pursuing the power to sell, or if the assessment upon which it is based be void at law, but is not unequal, inequitable or unjust, or void because of the omission or commission of some act that would render such assessment unequal, inequitable or unjust, and the property was. subject to taxation, and the assessment made by the proper officials and the tax not paid, then equity will under the maxim, that he who seeks equity must do equity, require the owner to pay the tax for which the land was sold, or so assessed, as a condition to granting relief by cancelling the cloud created by the sale. Wood v. Helmer, 10 Neb. 65, 4 N. W. Rep. 968; Fifield v.
Some contention is made in the brief that the bill was bad because complainant did not allege a payment or tender of payment of taxes as required by section 8, Art. IX of the constitution. .A cursory reading of the provision referred to will demonstrate that it has no application to this case. Furthermore, the bill did not show that complainant owed taxes on other property validly and legally assessed, and the objection could, therefore, only be raised by answer. This is held in City of Tampa v. Mugge, 40 Fla. 326, text 336, 24 South. Rep. 489, to be the rule where a petition is filed under the statute to set aside an assess
The demurrer in this case seems to have been a general demurrer to the whole bill, and the only ground applicable to the entire bill was the thirteenth, alleging a general want of equity. The bill was not entirely wanting in equity if it stated any ground for equitable relief. Thompson v. Maxwell, 16 Ela., 776; Durham v. Stephenson, 41 Fla. 112, 25 South. Rep. 284. If, therefore, the bill alleged a case for equitable relief as against any one of the certificates, this ground was properly overruled. We hold that as to three of the certificates the bill was properly brought, which disposes of this ground of the demurrer.
All the other grounds of demurrer were addressed to particular parts of the bill, and asked the court to hold the entire bill.bad for objections applicable only to parts thereof. This is not permissible in equity pleading, as was held in Durham v. Stephenson, supra. The sdrne questions are, however, presented as objections to the final decree, and we will consider them under the assignment of error questioning the propriety of that decree. If the bill made no case as to any one of the certificates, the final decree is to that extent erroneous, notwithstanding the decree pro confesso against appellant, for even after a decree pro confesso relief must be granted only as to the case made by the bill, and if the bill makes no case, no decree ought to be entered in complainant's favor. Price v. Boden, 39 Fla. 218, 22 South. Rep. 657.
We are also of opinion that certificate No. 175 was vori because the notice of said tax sale was published in two newspapers when the law required that it be published in one only. The statute, section 51, Chapter 4323, laws of 1895, required the list of lands to be sold for.State and county taxes to be published in a newspaper to be selected by the board of county commissioners. Whether the city tax collector, in order to proceed substantially in the same manner as the. State collector as required by the statute, must publish the city tax notice in the newspaper selected by the county commissioners, or whether he may publish in one selected by the city council, or by himself, we do not decide, but it is clear that the publication must be made in one official newspaper only.. This is important to the land owner for many reasons. Two official publica
The remaining certificate, No. 147, was attacked upon the ground that no report of the sale was made to the Comptroller. Whether the requirement that the city tax collector shall proceed substantially in the same manner as the State collector, obliges him to forward a copy of
The final decree, in so far as it cancels the first three certificates named, is affirmed. As to the fourth certificate the decree is reversed, and as to that certificate the bill is dismissed.
Dissenting Opinion
dissenting.
I regret that I am not able to concur in the view of the majority of the court that a failure of a city tax collector to forward to the Comptroller a list of the lands sold for city taxes, as provided in the revenue law of 1895, is an omission of which the land owner can not complain. The statute provides that three such lists shall be made, two to be filed with officers of the city and county respectively in which the land lies, and the third to be forwarded to the Comptroller, in whose office all of the tax records of the State are gathered. None of these lists is made that to which a land owner shall especially look to ascertain whether his land has been sold.
A property holder may own lands in several counties. It would be a most natural course for such an owner, instead of prosecuting a separate search in each county, to apply to the Comptroller's office, in which should be found a record of all tax sales, for information as to the sales made of his lands. Should he ascertain all there recorded and redeem the lands from these, and after the period for redemption has expired discover that other sales had been made and not reported to the Comptroller, it would be a most harsh rule to say that he had no right to assume that the officers had performed that part of their duty requiring them to forward such lists to the Comtproller, and that, as a result of his misplaced confidence in their compliance with the law, he shall lose the ’land which he can no longer redeem.