State ex rel. Stieff v. Bradshaw

39 Fla. 137 | Fla. | 1897

Carter, J.:

This court has more than once recognized the propriety of enforcing by mandamus the execution of tax: deeds by clerks of the Circuit Courts upon tax certificates presented after the period of redemption has expired, the holders thereof having complied with all conditions entitling them to such deeds. State ex rel. Warwick vs. Jordan, 36 Fla. 1, 17 South. Rep. 742; State ex rel. Lewis vs. Bradshaw 35 Fla. 313, 17 South. Rep. 642; Hull vs. State ex rel. Rollins, 29 Fla. 79; 11 South. Rep. 97. And there can be no doubt that mandamus is the proper remedy in such cases. 2 Blackwell on Taxation, sec. 734; Black on Tax Titles, sec. 388.

Respondent, though represented by an array of eminent counsel in the court below, has not seen tit to favor ns with a brief in this court, pointing out wherein the “facts” stated in the petition “are insufficient in law to entitle relator to the relief prayed.” Relator's counsel suggest that the court below acted upon the assumption that .the period of redemption prescribed by sections 7 and 8 of chapter 4011, acts of 1891, applied to the certificate in this case. These sections attempted to give the owners of lands sold for taxes upon which tax certificates were then outstanding the right to redeem at any time within two years from the passage of this act, and forbade the issuance' of tax •deeds upon certificates then outstanding for two years. This act took effect August 4, 1891. Hull vs. Greeley, 31 Fla. 471, 12 South. Rep. 469; State ex rel. Lewis vs. Bradshaw, 35 Fla. 313, 17 South. Rep. 642. The case of Hull vs. State ex rel. Rollins, 29 Fla. 79, 11 South. Rep. 97, was in many respects similar to the 'present one. The holder of a tax certificate dated August 5, 1890, based upon an assessment and sale made and had under chapter 3681, acts of 1887, made application to the proper clerk of the Circuit Clerk for a deed after chapter 4011 had taken effect. This application being refused, the remedy by mandamus was sought to compel the execution of the deed, and the Circuit Court having granted the peremptory writ, a writ of error was taken to this court. It was there held that the right of a purchaser, other than a State or other governmental agency, 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, was a contract right; and that a statute passed subsequent to the sale proposing to extend the ■period allowed by the former act for redemption was •a violation of the contract, and of no effect as to such purchaser or his assignee. In State ex rel. Lewis vs. Bradshaw, 35 Fla. 313, 17 South. Rep. 642, it was held that sections 7 and 8 of chapter 4011 could not avail a clerk of a Circuit Court as a defense in a mandamus proceeding to compel him to execute a tax deed on certificates properly issued, and upon which the right to a deed had accrued and the deed demanded before chapter 4011 went into effect. In the present case the tax sale was made and certificate issued August 4, 1890, and the time for redemption — one year — expired with the 3d day of August. 1891, and chapter 4011 went into effect the next davg August 4, 1891. The assignment of the certificate was made to relator August 2, 1891, and consequently the relator was the owner of an outstanding certificate upon which the period of redemption had expired before chapter 4011 •went into effect, and under the decisions cited he was ■entitled to a deed, notwithstanding the passage of chapter 4011. Nor is this conclusion affected by the fact that the certificate was based upon a sale for city taxes by the tax collector of the city of Orlando. This ■city was “a legally incorporated city, with all the powers incident thereto under the laws of Florida.”— Chapter 3628, acts 1885. By section 10, chapter 3786, ‘ ‘all sales for taxes made for the non-payment of taxes in the city of Orlando shall be made in the same manner, and shall be of the same force and effect, as the sales made under the general revenue laws of the State ■of Florida;” and by section 53 of the general revenue act of 1887, chapter 3681, which was in force when the assessment and sale were made in this case, and until August 4. 1891 (Hull vs. Greeley, 31 Fla. 471, 12 South. Rep. 469), “the tax collector of any city or incorporated town shall proceed substantially in the same-manner in the collection of taxes and sale of lands for non-payment of taxes as State tax collectors.” Section 54 of this act authorizes certain designated persons to redeem lands sold by a city tax collector by making application to him; and by sections 58 and 59‘ the clerk of the Circuit Court is required to make the-deed for all lands sold for non-payment of taxes by any city or town, not redeemed, substantially in the same form as provided in section 57, but such deed must be issued in the name of the city or town. By section 57 the form of tax deed is prescribed, and it is-therein provided that on presentation of the certificate of sale to the Clerk of the Circuit Court or his deputy, after the expiration of the time “provided by law in this act” for the redemption of lands sold, unless the-same shall have been redeemed, he shall execute to the purchaser or his heirs or assigns a deed of the land therein described, unless it shall be shown that the taxes for that year had been paid before the sale. From these references it is clear that the tax collector of the city of Orlando had power to sell lands for city taxes and issue certificates of purchase, and that it-was the duty of the Clerk of the Circuit Court to execute deeds upon such certificates after the expiration of the period for redemption. In the case of Hull vs. State ex rel. Rollins, 29 Fla. 79, 11 South. Rep. 97, the coui’t expressly decline to announce what effect the passage of Chap. 4011 would have upon outstanding certificates in the hands- of the State- or other governmental agency at the time of the passage of the-statute, and that case is not now before us for decision,, for even if. the city of Orlando be regarded, as a governmental agency, it had parted with this certificate-for a valuable consideration, by transferring same to complainant on the 2d day of August, 1891, two days prior to the taking effect of Chapter 4011 — and the relator being the owner of the certificate at and prior to the time when said Chap. 4011 took effect, could not be affected by it, as it would impair the obligation of his contract. State ex rel. Davenport vs. McDonald, 26 Minn. 145.

The Circuit Court erred in quashing the petition, and its judgment is reversed and the cause remanded for further proceedings in accordance with law and this opinion.