| Fla. | Feb 4, 1937
Lead Opinion
This case has heretofore been before this Court upon an appeal by appellants from an order denying a motion to dismiss the original bill of complaint, as then amended. The order was reversed and the cause remanded for appropriate proceedings. Crawford, et al., v. Rehwinkel,
On the first appeal it was held that the bill was insufficient to show an assessment that would justify a foreclosure of the tax sale certificates in that the assessment did not conform to the requirements of the statute in describing the *873 land surveyed only by a private survey, that is assessed and sold for non-payment of State and county taxes as shown in this case.
The statute provides:
"When private surveys of land or descriptions by metes and bounds have taken the place of government surveys, and the land is known, designated and described only by such private surveys or metes and bounds, the description in the assessment shall be made in accordance with such surveys or descriptions as recorded in the office of the Clerk of the Circuit Court, or by reference to deed of record, giving the book and page as appears in the office of the Clerk of the Circuit Court, and when Spanish grants or donations exist in any county in this State, which have not been surveyed and platted or which plats are not recorded in the office of the Clerk of the Circuit Court, the County Assessor of Taxes for such county shall assess the several tracts of land owned in such grants not platted as above describing the same by reference to deed of record, giving the book and page of record as appears in the office of the Clerk of the Circuit Court, and if the deed conveying such tracts is not recorded upon its production to the County Assessor of Taxes, he may describe the lands as being that tract, lot, piece, or parcel described in a deed executed by the grantor (naming him) to the grantee (naming him), bearing date (giving date shown by deed), and such description shall be valid and sufficient for all purposes of the assessment." Sec. 920 (718) C.G.L. (Ch. 4322, Acts 1895, Sec. 21; Ch. 5596, Acts 1907, Sec. 19).
The descriptions of the land in the tax sale certificates are as follows: *874
"TAX SALE CERTIFICATE NO. 62 * * *
Sec. T. R. Acres
Description of Land S.W.
--------------------------------------------------------------------
All of lots 50-51 S 1/2 of
52 of ___________________________ H. S. 900
--------------------------------------------------------------------
in the County of Wakulla, State of Florida. * * *."
"TAX SALE CERTIFICATE NO. 70.
Sec. T. R. Acres Description of Land S.W. -------------------------------------------------------------------- S 1/2 of Lot 61 and all of Lots 62, 63, 64 of _________________ H. S. 1260 -------------------------------------------------------------------- in the County of Wakulla, State of Florida. * * *." The court used these words in the first appeal:
"The assessment in this case was apparently made according to a private survey; but it does not appear that the survey was recorded in the office of the clerk of the circuit court, and no reference was made in the bill of complaint to any record thereof; nor was it alleged that the assessment roll contained a reference to any deed of record, conveying said land, appearing of record in the office of the clerk of the circuit court." Crawford v. Rehwinkel,
The amended bill of complaint here considered does not allege that the private survey known as "Hartsfield Survey of Lands in Forbes Purchase in Wakulla County, Florida," was recorded in the office of the clerk of the circuit court of that county; nor is there any allegation as to any deed of conveyance on record, or any other record in the office of the clerk of the circuit court in Wakulla County to which reference could have been made as to the existence of a *875 Hartsfield Survey in assessing the land for taxation in Wakulla County.
The amended bill of complaint considered on this appeal contains the following:
"That a photostat copy of said Hartsfield Survey in the Forbes Purchase in Wakulla County, Florida, certified by the Commissioner of Agriculture of the State of Florida, the legal custodian of the records of deeds, maps and papers pertaining to the public lands of said State is hereto attached as `Exhibit 1' of this amendment to amended bill *876 of complaint and prayed to be taken as a part hereof by reference.
"Your orator would further represent unto the court that by long, constant and continuous usage by the general public in Wakulla County, Florida, the letters `H.S.' in any connection whatsoever with real estate or real estate transactions *877 have come to definitely and commonly mean Hartsfield Survey; that such interpretation is generally understood and recognized by the public at large, and your orator is advised and believes and, therefore, alleges that the letters `H.S.' in Wakulla County, Florida, in connection with any real estate transaction, have no other general or practical meaning than Hartsfield Survey, and by virtue of said continued interpretation and long established usage of these terms by the land owners in Wakulla County, Florida, that the defendants knew, or by the exercise of reasonable diligence should have known, that the assessment and tax sale upon which said tax sale certificates were predicated had no other meaning than Hartsfield Survey and, therefore, had notice of the assessment, sale and subsequent issuance of the tax sale certificates herein sought to be foreclosed."
Exhibit 1 referred to is a copy of a record in the State Land Office, and it does not show that it was ever recorded in Wakulla County, Florida. The letters "H.S." used in the assessment description under "Sec." and "T." are not shown by reference toany record in the county to refer to "Hartsfield Survey" of land in "Forbes Purchase" in Wakulla County, Florida.
In Trust Company of Florida v. City of Tampa,
"Whatever may be the rule otherwise in cases involving the validity of tax deeds and the like, which, ex proprio vigore, convey title as the result of administrative procedure by administrative officers, it is certain that, in a proceeding brought directly by the taxing authority against taxable land of a particular description, which is alleged to have been assessed by the particular description sued on, that it constitutes no defense under which a claimant of the property so described in a foreclosure suit may defeat the foreclosure *878 which is asked against the property only as described on the tax roll. Even if the description is defective or indefinite as to the land, provided the taxes have not been paid on it, or it was not exempt from taxation under the Constitution or the statutes, this would not be a defense to the foreclosure, although it might affect the title conferred by it under a master's deed containing an insufficient description. * * *
"Appropriate defenses going to the enforceability of the tax arising out of the manner in which the tax proceedings have been carried out by the tax officers should be asserted by answer, the presumption being that the tax and accompanying assessment appearing on the tax roll were properly arrived at by due course of law and procedure, and that the description of the property appearing on the roll is sufficient to enable a surveyor to locate the land assessed with the aid of the information furnished by the whole tax roll in connection with the other county records." See Inter-Security Co. v. Barbee,
Where descriptions of property assessed for taxation are merely irregular and not illegal, the above is the rule; but such rule may not be followed when the description in a tax assessment of land is so defective as to amount to a denial of due process of law when the land is sold for non-payment of taxes. The allegations as to the assessment in this case wholly fail to show a compliance with the statute in making the assessments. There is no allegation of the record in Wakulla County of a plat of the Hartsfield Survey in Forbes Purchase, or of any other record referring to Hartsfield Survey of land in in Forbes Purchase in Wakulla County, Florida. Any recorded deed of conveyance of land *879 describing land as being in Hartsfield Survey, Wakulla County, Florida, would be a record reference to the survey.
The appellee does allege that the particular descriptions have reference to Hartsfield Survey of Forbes Purchase in Wakulla County, Florida, and have been used generally in conveyance of land in Wakulla County; but there is no allegation of any record
in Wakulla County that refers to a Hartsfield Survey, to support the method of describing the real property that is claimed to be covered by the assessments and tax sale certificates, considered in this case. See Dixon v. City of Cocoa,
"Prior to the cession in 1819 of the Floridas to the United States by Spain, trading companies known as Panton, Leslie Company and their successors, John Forbes Company, by permission of the Spanish Crown, did an extensive mercantile business among the Indians in East and West Florida, the dividing line between the Floridas being the Apalachicola river. In consideration of large indebtedness to these mercantile companies and many depredations upon *880 their property, `The Indians' * * * ceded to the companies at different times large tracts of lands `occupied by said Indians.' The cessions of these lands, including islands, were confirmed by the Spanish authorities and were referred to as `lands and islands' `contained within stated limits.'
"Speaking generally, the `lands and islands' composing the several Indian-Spanish grants or cessions included in `Forbes Purchase' are:
"1. Grant to Panton, Leslie Company, confirmed by Spanish authority in 1804 and 1806.
"2. Grant to John Forbes Company, confirmed by Spanish authority in 1811.
"3. Grant of an island in the Apalachicola river to John Forbes, confirmed by Spanish authority in 1811. This island is in Franklin County, Florida.
"For descriptions of the grants, see Apalachicola Land Dev. Co. v. McRae,
"The grants were held to be valid under the Treaty of Cession dated February 22, 1819 (Mitchell v. United States, 9 Peters [U.S.] 711; United States v. Mitchell, 15 Pet. 52" court="SCOTUS" date_filed="1841-02-18" href="https://app.midpage.ai/document/mitchel-v-united-states-86163?utm_source=webapp" opinion_id="86163">15 Peters 52)." Vol. 5, Compiled General Laws, p. 4791, single vol. C.G.L., p. 47.
Reversed.
ELLIS, C.J., and WHITFIELD, TERRELL, and BROWN, J.J., concur.
BUFORD and DAVIS, J.J., dissent.
Dissenting Opinion
It seems to be clear from the record in this case that the capital letters, "H.S.," as used in the description have been sufficiently identified by the pleadings to be taken to mean "Hartsfield's Survey" in Wakulla County. See Broadwater v. Tampa Shores, *881
Addendum
It is alleged that H.S. as used means Hartsfield Survey, but there is no reference to any record in Wakulla County of conveyances of land described as being in Hartsfield Survey.
The description of the land in making the assessment, *882 as appears by the tax sale certificates, may be shown to be legally sufficient by appropriate allegations and proofs of essential facts to meet the requirements of the assessment statute; and the opinion herein indicates wherein the allegations of the bill of complaint are insufficient to show the assessment was made in compliance with the assessment statute. Sec. 920 (718) C.G.L.
Rehearing denied.
ELLIS, C.J., and WHITFIELD, TERRELL, BROWN and BUFORD, J.J., concur.
DAVIS, J., concurs in the opinion as an interpretation of Supreme Court's previous decision and opinion in this case, but does not recede from his previous position that decree appealed from should have been affirmed. *883