State ex rel. Lewis v. Bradshaw

35 Fla. 313 | Fla. | 1895

Mabry, C. J.:

This is a case of original jurisdiction here, commenced by mandamus in July, 1891. The alternative writ prays for a writ of mandamus to respondent in his official capacity as clerk of the Circuit Court of Orange county, commanding him to issue to relator a tax deed, upon tender of proper fees, based upon certain tax certificates issued in September, 1889, by the tax collector of Orange county, and held by relator as assignee.

It is alleged that certain described lands, situated in Orange county, were sold by the tax collector of that county on thé 2nd day of September, 1889, for the nonpayment of the taxes levied and assessed thereon for the year 1888, and that proper certificates of sale were issued, on the date of sale mentioned, to one R. H. Ramsey, who, on the 25th day of January, 1890, assigned the same for valuable consideration to relator. It is further alleged that no part of the lands had ever been redeemed from said tax sales, and no proof ever made that any of the lands were not subject to taxation for the year 1888, or that any of the taxes for said year had. been paid prior to said sale. Also, that relator, on the 18th day of July, A. D. 1891, caused to be prepared a tax deed in due form of law conveying said lands to him, and demanded of respondent that he execute, as clerk of the Circuit Court of Orange county, said deed or deed to be prepared by respondent himself, as it was his duty to do, upon tender of the proper fees then alleged to have been made, and ihat he refused to do so.

Respondent admits in his answer that he refused to execute the tax deed, and the only defense relied on is, that he did not believe he could, legally do so under Sections 7 and 8, of Chapter 4011, laws of Florida, approved June 10th, 1891.

As appears from the foregoing statement, the tax sale certificates were issued in September, 1889, on tax sales made on the 2nd day of that month, and, the lands not having been redeemed, a tax deed was demanded on the certificates on the 18th day of July, 1891.

Relator was clearly entitled to the issuance of the tax deed on the showing made, and the peremptory writ of mandamus must be awarded. The only defense relied on is based upon the seventh and eighth sections of Chapter 4011, acts of 1891. This act did not take effect until the 4th day of August, 1891— sixty days after the final adjournment of the Legislature (Hull vs. Greeley, 31 Fla. 471, 12 South. Rep. 469), and long prior to this time the period for the redemption of the lands under the revenue act of 1887, under which the sale took place, h ad expired. The-issuance of the tax deed had been demanded before the act of 1891 went into operation, and at the time the demand was made that act could have no bearing on the subject. This court has gone further in construing Sections 7 and 8 of the act of 1891 than it is -necessary to go here. It was held in the case of Hull vs. State ex rel. Rollins, 29 Fla. 79, 11 South. Rep. 97, that the right of a purchaser, other than a State or -some governmental agency, acting as such, at a sale of land for taxes under a statute which provides that the purchaser or his assignee shall have a conveyance of the land, unless the land shall be redeemed within one year next succeeding the sale, is a contract right; and <a statute, passed subsequent to such sale, which proposes to extend the period allowed by the former act Tor redeeming the land from the sale, is a violation of The contract, and of no effect as to such purchaser or his assignee. If a sale to a private individual had occurred under the act of 1887 prior to the going into effect of the act of 1891, but the period of redemption provided under the former act had not expired, the Legislature could not extend the time for redemption, .as it would be an impairment of contractual rights. In the present, case not only had the sale been made under the act of 1887 before the passage of the act of 1891, but the time for redemption under the former act had also expired before the latter act went into effect.

Let the peremptory writ issue. Order to be entered .-accordingly.