Spaulding v. Ellsworth
39 Fla. 76
Fla.
1897
Check Treatment
Cartuk, J.:

Thе chancellor should have overruled the plea filed by appellee, Ellsworth, instead of allowing it on the argument. The proper method of testing the legal sufficiency of a plea is to set it down for argument, which is in effect a demurrer to the plea. Upon the hearing every allegatiоn in the bill not denied by the plea is taken as true, and every allegation of the plea is likewise taken as true. Hart vs. Sanderson’s Administrators, 18 Fla. 103; 1 Beach’s Modern Equity Practice, sec. 326; Story’s ‍‌​​‌​​​‌‌‌‌​‌​‌​​‌​​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌​‌​​​​‌‍Eq. Pl., secs. 694-697; 1 Daniell's Ch. Pl. & Pr., p. 695. From the plea it appeared that the tax sale was made May 2, 1887, but by the bill it was showm that no deed was executed pursuant to this sale until August 7, 1888; and this allegation was not denied by the plea. The plea аdmitted that the present suit was begun August 6, 1891, which was within three years from the date of the deed, but more than four yеars from the date of sale. It is contended by appellee that these facts were sufficiеnt to sustain the plea under the provisions of section 60, Chapter 3681, approved June 13, 1887, which, leаving out the proviso as inapplicable to this case, reads as-follows: “No suit or proceeding shall be commenced by a former owner or claimant, his heirs or assigns, or his or their legal rejwеsentatives, to set aside any *84deed 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 рossession of said lands, unless such suit or proceedings be-commenced within four years after date of such sale.” It is contended by appellant that this section of the act of 1887 does not govern the present case because-this sale was had under the provisions of Chapter 3413, apрroved March 5, 1883, before the act of 1887 was passed. It is not pretended by appellee that the ‍‌​​‌​​​‌‌‌‌​‌​‌​​‌​​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌​‌​​​​‌‍plea is good under the last named statute, and without-stopping to inquire if the quoted section of Chapter 3681 is applicable to this proceeding, we think the-correct interpretation оf that section is that the limitation begins to run from the execution and delivery of the tax deed, and not frоm the day the land is-struck off to the highest bidder. The weight of au • thority favors this construction of statutes very similar tо this; Black on Tax Titles, sec. 494; 2 Blackwell on Tax Titles, sec. 895; Jones vs. Randle, 68 Ala. 258; Eldridge vs. Kuehl, 27 Iowa, 160; and the language used in this section, together with other provisions of the same statute show that the Legislature could not have intеnded that the limitation should run from the day the land is bid off. By section 51 the-collector is required to give a сertificare to the purchaser at the sale, which stipulates that the purchaser will be entitlеd to a deed of conveyance in accordance with law unless the land shall be redeemed within one year; and section 54 expressly authorizes any person ‍‌​​‌​​​‌‌‌‌​‌​‌​​‌​​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌​‌​​​​‌‍claiming the lands to redeem same at any time within оne year next succeeding the sale, and section 57 authorizes the Clerk of the Circuit Court to execute a deed to the purchaser on presentation of the certifi*85'•cate after the time provided by law for redemption of the lands; but not before. Substantially the same provisions are found in the act under which this sale was made. ‍‌​​‌​​​‌‌‌‌​‌​‌​​‌​​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌​‌​​​​‌‍Sections 52, 55 and 58, Chapter 3413 act -of 1883. The limitation in section 60, Chapter 3681 is directed аgainst a proceeding to set aside a deed made in pursuance of a sale of land for taxеs, or to recover possession of the lands. This is a suit to set ■aside a deed. It is obvious ‍‌​​‌​​​‌‌‌‌​‌​‌​​‌​​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌​‌​​​​‌‍that no suit can be brought to set aside a deed, until the deed has been made, and the act contains no limitation of the time within which ■■a'dеed can be made. The purchaser can if he chooses wait until the expiration of four yеars from the date ■of the sale, to demand a deed, but it will not be pretended that the Legislature intended to put it within ■the power of the purchaser to shut off all rights of the former owner to contest thе validity of the deed, by a voluntary delay on his part to obtain a deed until the limitation prescribed by this section has expired. The purchaser at a tax sale has not even a primafacie right to the land or its pоssession until he has obtained a deed, and the owner can not be required to begin proceedings to set aside the deed, until the deed is made. The deed is the final consummation of the sale, and thе sale referred to in this section means the completed sale accomplished by the execution and delivery of the deed. This proceeding was therefore brought within the time limited by this section, if the section is applicable, and the plea should have been overruled.

The decree sustaining the plea, and all subsequent ■orders based thereon, are reversed; and the •cause remanded with directions to the court below to *86overrule the plea and permit appеllees to answer the bill, if they desire, and for further proceedings in ac cordance with chancery practice.