36 Fla. 1 | Fla. | 1895
The alternative writ in mandamus proceedings occupies the place of a declaration in an* ordinary legal suit, and when that writ has issued, the issues of law or fact are made thereon. In the present case the demurrer was to the petition, but as it appears that it was considered in the trial court in the nature of an-alternative writ we will so treat it here.
The right to the tax deed demanded by appellant arises under Chapter 3681, law7s of 1887 — the statute-under which the tax. sales here involved were made. After the issuance of tax sale certificates, as provided for in this act, it is provided in the fifty-seventh section-that “on the presentation of such certificate or certificates of sale to the clerk of the Circuit Court or his deputy, after the expiration of time provided by law in this act for the redemption of lands sold as aforesaid, unless the same 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, which deed shall be prima facie evidence of the regularity of the proceedings from the valuation of the-land by the assessors to the date of the deed, inclusive, and the consideration expressed in the deed may be the same as is expressed in the certificate of sale, together with the taxes, costs and interest required by law,.
The decisions cited by counsel for appellant are based ■upon statutes expressly providing that the tax deed may include separate and disconnected tracts of land, and if the statute of 1887 authorizes such a deed as is •contended for here, appellant’s contention should be sustained. Objection was made to a tax deed on the .ground that it purported to convey several parcels of land, in the case of Waddingham vs. Dickson, 17 Col. 223, 29 Pac. Rep. 177, and the court said: “It is a sufficient answer to the third objection made to this •deed, to say there is nothing in our statute which requires separate deeds for each piece of property sold, where the purchaser of the several tracts is the same person. In the absence of a statute to the contrary,
Before stating our conclusion on the question presented, a brief reference will be made to tax acts prior to the one passed in 1887. The act passed in 18691 (Chapter 1718) provided for a sale of lands delinquent for taxes by the county treasurers of the counties, and a purchaser at a tax sale received a certificate, similar to the one provided for in the act of 1887, reciting that the purchaser, or his assignees, would be entitled to a deed of the land sold in accordance with law unless-the same shall be redeemed, with the interest provided. A certificate issued for each parcel of land assessed and sold, and it could be transferred or assigned by the person to whom it was issued writing his name-on the back thereof. If there were no bidders for the lands offered for sale, the wffiole trust was bid off for the use of the county. On the presentation of such, certificate or certificates of sale to the county clerk, after the expiration of time provided by law for the-redemption of lands sold, he was directed to execute to the purchaser, or his heirs and assigns, a deed of' the land therein described, unless he should discover that the same was improperly sold. There was no« form of deed prescribed by this act, but it was expressly provided therein that the deed to be made by
We conclude that the holder by transfer and assignment of separate certificates from the Comptroller stands' in the same right as to having the tax deed executed as a private person. As we have stated, the statute-in force prior to the one in which the form was prescribed expressly directed that the deed may include the lands described in one or more certificates, and we see no room to doubt that the same could be done under the act of 1872, prescribing the form of deed to be-executed. It is true that under that statute the State did not become a purchaser, and there was no provision for her to acquire or assign tax certificates, but the same form of deed was retained under the system permitting the State to purchase lands at tax sales and assign the certificates. The form of deed, as above-stated, was changed so as to expressly include the assignee from the Comptroller, and although the singular number is used in referring to the certificate in such case, this does not, in our judgment, alter the-manifest purpose of the statute to put all purchasers on an equal basis in acquiring deeds on tax certificates. We discover no grounds of public policy or necessity requiring or indicating that a different construction should be given to the statute.
The appellant made out, by the allegations of the petition, which alone we must look to on demurrer, a clear jmima facie right to have appellee, as clerk, execute one tax deed including the lands in the separate certificates held by him, and the court should not have-sustained the demurrer.