63 Fla. 443 | Fla. | 1912
— Fannie R. Johnston, the appellant, in August, 1910, filed her bill in the Circuit Court of Alachua •County against appellee, the Ellsworth Trust Company,
The bill alleges a similar illegal assessment of a part of the land described in the bill for 1890, and sale thereof on the 7th of September, 1891, but that matter is not now before this court.
The bill further alleges several other matters as to the illegality of the assessment and sale in September, 1889, of lands embraced in Certificate No. 774, and as to the sale on the 7th of July, 1890, lands embraced in Certificate No. 644, and as to 'the sale in 1891, Certificate No. '241, which need not at this time be discussed. The bill alleges that at the time these various sales and conveyances were made the oratrix was in adverse possession of the
On the 6th of February, 1911, the Ellsworth Trust Company filed the following plea to the bill of complaint:
“This defendant by protestation not confessing or acknowledging all or any of the matters and things in the complainant’s bill mentioned, to be true, in such manner and form as the same are therein and thereby set forth, and alleged, does plead thereunto and for plea says: First, that the complainant’s cause of action in the above suit did not accrue within four years of the filing of the bill of complaint herein; second, that complainant’s cause of action in the above suit did not accrue within seven years of the filing of her bill of complaint herein; third, that the complainant’s right to maintain her suit in this cause is barred by the statute of limitations of the State of Florida. All of which matters and things this defendant avers to be true and pleads the same to the whole of the said bill wherein the same relates to this defendant, etc. By leave of court the defendant afterwards withdrew the second and third pleas. The first plea was then set down for argument, and upon the hearing the Circuit Judge made a decree” holding the plea to be sufficient, which decree was recorded. The complainant filed a petition for a rehearing, which was denied on the 10th of November, 1911. On the 6th of
The appellee’s solicitor, in his brief, bases his whole argument and rests his contention in support of the decrees below, upon the provisions of Section 60 of Chapter 3681, Acts of 1887, which section is as follows: “No suit or proceeding shall be commenced by a former owner or claimant, his heirs or assigns, or his or their legal representatives, to set aside any deed made in pursuance of any sale of land for taxes, or against the grantee in such deed, his heirs or assigns or legal representatives, to recover the possession of said lands, unless such suit or proceeding be commenced within four years after date of such sale; Provided,” etc. The proviso has no bearing on this case. There are several objections made by the appellant to the applicability of this section to the facts of this case. We think, however, it is only necessary to consider one of them. It seems to us to be plain, after a careful consideration of the whole section in the light of the principles of the organic law, that it does not embrace a suit to set aside a tax deed as a cloud upon the title of the owner, who has all the time remained in actual possession of the land embraced in the tax deed.
The bill in the instant case alleges facts, which, if true, render the tax titles of the appellee void. Under the circumstances stated in the bill, where the owner and her grantor have been in possession of the property for many years — embracing a period going back of the date of the tax sales and deeds, if the legislature were to attempt by a short limitation period to cut of all rights of the owner who remains in possession, in favor of the holder
The decrees appealed from are reversed, at the cost of appellee.