*1 n sale, prevent such tax the is- lands at a and to
sale thereon, compulsion or of a tax deed is not such suance such tax under payment as to make the duress involuntary, so that the amount of circumstances (Lamborn protest be recovered back can without County 181), rule is sub- Commrs., U. S. this v. ject exception, present case, to an in the where the illegal special exaction an benefit assessment in the a tax form of and its collection is so tied in with other ad- mittedly legal governmental taxes, taxpayer choice the matter payment, compelled but is pay illegal special benefit at assessment the time paying of other ordinary taxes in order to his governmental taxes purposes. legal recognized is a distinction
There between a tax sense, special true and a benefit its assessment only permissible a tax. form of The latter is when based on a determination of some kind of property benefit assessed, though even it be the form of an ad valorem tax on all property levied in a district deemed to have specially as a benefited whole. Jinkins v. Entz- minger, Rep. Fla. 785.
Rehearing denied. . Whitfield, P.J., Davis, and Teeeell J.J., concur.
Bufoed, C.J., J., and Ellis concur Bbown, in the opinion judgment. wife,
R. J. Foxworth and his Foxworth, Ap Amanda J. pellants, Maddox, Appellee. G. vs. J.
En Banc. Opinion filed October *2 Grace, Appellants; H. L. for Appellee. Walker,
Thomas E. for appellee, whom will refer we Davis, Commissioner: the circuit filed his herein as the appellants, County against whom we court of Jackson It is shown the bill that will refer to as the defendants. day defendants, November, 1927, exe- on the 15th for and delivered to the a bond title cuted acknowledged, they agreed properly convey wherein for a named consideration to be on January 15th, before certain lands therein de- or day ; January, that on the 16th scribed A. D. and the entered agreement writing
into another fol- reads as lows : “Whereas, the......day on or heretofore about
November, 1927, judgment a verdict and was rendered Court in the Circuit pending in a cause certain R. Foxworth Florida, in which County, Jackson was plaintiff, and Jessie Maddox posses- right of awarding plaintiff the title and in Jackson following lands sion described County, Florida, to-wit: range Township North, of Section S% SE1^ 11 west gave to said And Foxworth whereas, the 15th, bearing of November Maddox, date Jessie convey agreeing to premises, to said title a bond the sum payment of to said Maddox on or to said Foxworth Maddox by said of $1320.00 being essence January made the 1928, time 15th *3 title; and for of said bond pay has failed to over Maddox Whereas, the said paid Foxworth and has money, to said sum of the said thereof, party, Jessie Mad- therefore, the said second Now, the hereby recognized the said R. J. Foxworth as dox, lands, entitled to the immediate and owner of said thereof. possession by premises be rented agreed that said It is further Maddox, to said Jessie for and R. J. Foxworth the said day December, year 1928, for of the until the 15th Dollars, rental, for and of One Hundred at the sum give Maddox shall to said Foxworth his which the said satisfactory note, thereon, this with a endorser agreement giving effect. the rent shall take On said acceptance by note and of same said the operate premises as a same shall lease of said until day 1928 to the 15th of Dec. said Jessie Maddox. quit agrees Jessie Maddox to The said and surrender premises
the said to the said R. J. Foxworth at the good end of time, condition as at this less ordinary and usual wear and tear. agreed It that is further should the said Jessie Maddox, July at time 15th, 1928, on or before pay over said R. to said sum of provided to be the aforesaid bond for together with interest on such sum at from Jan- 8% uary 15th, 1928, then in such event the said Foxworth warranty shall make and deliver to said Maddox a deed conveyance, conveying him, and in that event the note, provided rent for, here shall be deemed and held to be cancelled and of no ’ effect. alleges The bill also in substance during years that 1928, 1929, pay- made certain purchase ments on price of said lands and that dur- ing the month April, 1930, complainant having been advised R. J. Foxworth, that there'was a balance of $370.00 still due principal him as and in- terest on purchase price, he thereupon executed delivered to said defendant a note for that amount with understanding upon payment note, the defendant would make conveying deed payments and that had been made on said note; maturity that before the note, complainant having arrangements made up due, take the balance person went in R. J. Foxworth for purpose of ascertaining the exact thereon, amount due alleges which the bill $275.00; has always ready willing the said defendant money balance of the made an effort so, to do but the defendant refused to *4 complainant and advised that he would not him a make in deed and a short time afterwards eject- instituted proceedings against complainant ment land; for the that complainant ready, able, still willing is and to defendant amount ascertained to be due defendant for said and that he is entitled to a deed of con- veyance him conveying to premises. said The prays that the court ascertain and decree the amount defendant, that R. Foxworth, due the and to re- quire defendants, “R. J. Foxworth and Amanda J. Foxworth, to the same and execute and to deliver” complainant good conveyance to a and sufficient deed of property, and that the
of the enjoined prosecuting ejectment be from further suit. reserving
In their answer defendants ex- themselves ceptions to the of the bill averred that no insufficiencies purchase price said land ever been paid or tendered to the defendants. testimony in the cause was taken before the Cir- equities thereupon found the be with Judge who
cuit to the “de- complainant, and that he was indebted $500.00, on the in sum of as a balance due fendants money $38.08 further as taxes and the sum upon complain- paid by defendants, and decreed that money; that sums the defendant paying to ant deliver to and execute shall “said defendants aforesaid conveying the warranty deed a any incum- and shall remiove to the land protect com- against the land or of record brances of tender same”; that the event against the plainant fail provided, and the defendants therein payment as deed, money and execute the accept the refuse to appointed accept the therein a commissioner registry of the court and make deposit it “free conveying deed the said lands good and sufficient liens”, complainant. all incumbrances from bill, allegations To sustain the receipts which he were in evidence certain offered which, him the delivered finding justified the court the com- genuine, if only plainant purchase price of was due on the the land Five Hundred Dollars. The said R. J. Foxworth testi- fying giving as a witness the case denied and' stated that he had been which was years. less than the rental value of the land for three pay- appears It that the failed to make *5 provided ment for the land the bond for signed was acknowledged by both Foxworth and his wife, he, complainant, and that the and R. J. Foxworth thereupon entered a new which Mrs. into contract Foxworth party. was not a This instrument created last the relation of landlord and tenant between R. J. Fox- upon complainant, option the and conferred an worth and purchase question. provision, It is common for leases to contain such a option prior prevent such an to its exercise does not of the relationship tenant, existence of landlord and al- though payments made as rent are to be credited upon purchase price case of the exercise of option. Renfroe, J.C. 1038. See Fla. Yacht Club vs. L’Engle Overstreet, also, Fla. 64 So. vs. 61 Fla. 55 So.
n provided The contract in the instant case for the ex- option by purchase paying ercise of the lessee price July 15th, 1928. The the.land evidence complainant, believed, if discloses strict lessor, provision by the performance of this was waived subsequently accepted pay- Foxworth, when he ments, them, purchase price. if he did on the showing partial payments purchase burden on the price willingness ability readiness, pay any and a complainant. balance due thereon on the Inter- Smith, national Harvester Co. of America Fla. 840; 574, 80 Schrader, Petroutsa vs. 76 Fla. So. 486. reviewing payments Without here the evidence as to represented to have been made price on the say produced we will that while the evidence by the defendants was in sharp with conflict that of question and a serious was raised as to authenticity of offered evidence
38 testimony, saw heard the the chancellor who opportunity inspect and had an witnesses
receipts, also settled the conflicts the evidence and genuineness doubts as to of in favor of the complainant. error, pre upon writ of
Upon appeal,
every
as well as
ruling
correctness of the
in favor of the
sumption is
396,
Horne, 57 Fla.
court below. Davis vs.
testimony
supports
find-
There is
in the record that
ing
that the
was due the
R. J.
question
purchase price of the land in
Foxworth, on the
here, that
there
the sum of
and it is settled
where
testimony
general
decree, it will
be
is
to sustain a
not
by the
ground
supported
it
not
reversed
Abbe,
769,
Herrin vs.
46
183,
evidence.
55 Fla.
So.
18
(N. S.) 907;
Travis,
309,
L. R. A.
Travis vs.
81 Fla.
87 So.
Bank of Ocala vs. First National Bank
Commercial
762.
Gainesville,
685,
So. 315.
80 Fla.
87
weight
more
if the
Findings
the chancellor have
taken,
him than if
so
not
was taken
evidence
they
appeal
not be disturbed on
unless
will
case
either
Lesley,
clearly
Carr vs.
73 Fla.
erroneous.
So.
Harrison,
Farrington vs.
95 Fla.
207;
by appellants in
contended
effect that the lease
It is
signed
acknowledged
Foxworth,
was not
or
Amanda J.
a decree should not have
and for
reason
covered
husband,
of her
more than the interest
R. J. Foxworth.
executed,
At
the time the lease was
Foxworth,
knew that the defendant
was a married
man,
copy
is evidenced
the bond for
He,
complaint.
was made a
therefore,
knew that Amanda J.
the wife of'
right
had an inchoate
of dower in the
compelled
land which she could not be
or
release
con-
vey
obligation
when she was under
contractual
required by
convey,
all the formalities
executed with
3803) Compiled Gen-
(3802
statute. See.
Laws, 1927;
eral
Miller,
92 Fla.
Fisher
So.
*7
Fla.,
also, Murphy
Hohne,
257. See
vs.
L. R. A.
pleadings proof was not entitled to a decree for a greater interest than R. J. Foxworth himself had.
The decree is reversed and the cause is remanded with will be court to enter a decree that the lower directions to expressed. herein harmony with the views having con cause The recordthis Curiam. Per foregoing opinion prepared court and the sidered 1929, adopted Chapter 14553, Acts court as under ordered, adjudged considered, and de opinion, it is its by the court decree the court below creed be, hereby should and the same is reversed and the cause is remanded with enter a directions to decree harmony expressed. will be with the therein views C.J., Buford, Terrell, "Whitfield, Ellis, Brown Davis, J.J., concur. Flagler County, The Board et Instruction, Public al., Appellants, V. W. Appellee. McKenzie,
En Banc.
Opinion filed October