Townsend v. BeckTownsend v. Beck
*1 553 mandamus, considered duly been having and tory writ the briefs record and transcript of the Court the respective parties, and counsel argument the court that the judgment Court is conclusion considered, is therefore should be affirmed. below of the court below judgment ordered and adjudged affirmed. hereby and same J., J., P. .Chapman, Whitfield, Brown J. concur. judgment. concurs opinion and Thomas as au- Terrell Justices Compiled
thorized General 21-A and Rule this Court. Rules of al., W. Townsend, v. Marie M. Beck. J. 390 So. A Division Filed Opinion June Supplemental Opinion November *2 Knight Knight, & 'for Aрpellants; Smith, D. for R. Appellee. appeal brings review an order J. The motion to
overruling complaint bill of dismiss and also an order portions of defendant’s striking answer.
The suit was instituted 21st day on April, Florida, Circuit Court Marion County, to foreclose deed, the lien of a tax which deed was issued on the 29th of October, 1935. day
The suit is predicated under the provisions of Chapter 14572, Acts of 1929. Except for the provisions of that chapter tax deed was considered and held a muniment of title and evidence of a lien. The status of a tax deed аs the evidence of a lien power foreclose n same was found Chapter elsewhere, and not and a foreclosure of-a lien so evidenced was speсifically by Section 13 supra.
Chapter Acts of repealed Chapter 14572 under which a tax deed could be held as the evidence lien foreclosed Chap- That the Governor approval ter became effective its 21, 1935, of the tax the issuance which was May deed involved this case.
It, therefore, tax cer- follows that when the holder a tax based on certificates procure tificate elected to chancery which lien in a court of evidenced a foreclosable liens, he under to foreclose general jurisdiction its the lien and abandoned his of election to foreclose to take to the independent subject elected a new and control of thе law it existed at the time the issuance of the tax deed. *3 is, it the had no in a court of complainant
So standing to maintain the suit and same should have been equity dismissed. stated,
For the the order from re- appealed reаsons versed with be directions cause dismissed. ordered.
So concur. J., J., C. and Terrell, .Whitfield, judgment. and opinion concurs Chapman not as au- and Brown Justices 1927, 4687, of Compiled thorized Genеral and Rule 21-A the Rules of this Court. of the man- sua recalled sponte Court has J.—The 13, herein on opinion
date our filed pursuant issued to June 1939, Bar that the Bench and because it to mаy appear under predicated viz.: “The suit is the language, using 14572, for Except Chapter the of Acts of provision tax deed was considered chapter the of that provisions the of lien. muniment and not evidence and held a of title the the evidence of a lien and The status of a deed is found in power Chapter foreclose the same was elsewhere, lien a foreclosure of a so evidenced the Section 13 of was specifically '556 17442,
supra. Chapter 1935, repealed pro- Acts of the Chapter visions of which a tax deed could be under held as the evidence lien That and foreclosed Chapter became effective its the approval by Governor 21, on 1935, May was to the issuance of the which case,”- tax deed involved in this Court have over- may —the S., looked the of Section 794 R. G. paragraph as amended Acts of by Chapter brought being as Sеction forward C. L.G. to such order we
Subseqent requested counsel submit briefs the statute, question constitutionality supra. The same have been filed and considered.
This but statutory provision wаs overlooked been has disregarded by Court this because the provision, “Any holder aoí of a tax certificate shall have a lien thereunder for amount paid therefor upon the land described therein lien enforced and fore- closed in suit in provided by law enforce- liens,” ment of statutory contained 1927 Act —as was not within the purview of the Act. The title of that Act is:
“An Act to amend Sections 794 and 795 Florida, Revised General *4 Statutes Relating to Notice of Deed, for Tax Application Deed, Manner of Tax Obtaining of in Limitation Timе which Suit be may Brought, and of Expenses Taxes Other Refunding Where Land is Recovered from Tax Deed Holder.” R. G. S. is as follows: Time in which Be
“Limitation of Suits May to Brought Purchaser, Land in Recover Pоssession of Actual etc.— of the land at tax sale purchaser goes When actual into n land, no possession such suit the recovery n possession be brought thereof shall а former owner or claimant, his or or assigns, heirs or his their legal repre- land, of such sentatives for the the possession recovery four after unless such suit commenced within be yеars sale, at such tax of the land so purchaser possession into goes tax where said real bought; purchaser and the at such sale is in or possession person estate the adverse actual any persons, shall not entitled recover of such possession to real estate tax suit for bought at such sale unless such shall be within one from the date of recovery brought year title; such tax and where acquiring any pur- to chaser of estate situated this State to the real in passage this Act' has taken entered into and actual shall, possession same he one after the within year- passage of this suit for the of the actual bring recovery possession of the real estate described in default thereof said tax title shall become void and of Provided, infants, no effect: that persons of unsound mind or under imprisonment guardianship commence suit may or proceedings within three after such shall years disability cease.”
That section statute was one for limita- providing tion of time in which suits be brought to recover land possession etc., of the рurchasers, actual had no —and reference to the foreclosure of tax liens.
The
contained
provision
in the 1927 Act
to
attempting
establish a tax deed as the evidеnce of a lien and to provide
for a foreclosure in
of such a lien
awas
departure
from
theretofore
statutory
existing
regard
the force
effect
of tax
dеed and
title to the Act was
insufficient
notice of the intent of such
give
legislation.
Carr v.
In Stephanus, Stuart v. 114 we said:
“If, however, deed and antecedent proceedings
are then of the delivery valid and from the time regular, of the the title deed with grantee clothed merely fee, person who seized of the with a was last but new, title in new complete, exclusive a paramount independent under an The tax sovereign authority. title thus creаted has to do with nothing previously title, chain of record nor it in existing way does connect with it. itself The issuance tax of valid deed extinguishes operation terminates of law all titles existing resting private equities out of ownership arising them. former are longer operative. Such titles no In this respect there is no a tax between title and an analogy chаin of record title.” ordinary And in that case we further said: “If valid, complainant’s tax deed is the former record title is extinguished operation and terminated of law. cloud, therefore constitutes no either actual or apparent upon complainant’s which fact appears from the public themselves, records without the aid of decree in If, hand, the other complainant’s tax deed is not valid, he is entitled to relief against record existing title, as the latter title continues exist in the record owner the invalid tax notwithstanding deed. The matter therefore resolves itself into the sole question of whether or not complainant’s tax deed is valid. As was said in Brecht v. Co., Burne Rep. South. there is now no prоceeding known law of this as a State bill to declare the validity deed only, as the of such a validity established the removal of claims which incidentally by constitute a cloud upоn the of the complainant holding under a tax deed. The alleged facts this bill of com- however, plaint, do not fall within the latter See category. Smith, Alvord v. also decided at this tеrm.” See also Dean Kane, v.
559 course, convey or ineffectual to if the tax is void Of title, nor muniment title, it would not constitute a then deed, that of a void except would it have other status and, void, the deed would be the holder of being if and could resort same as no deed had been issued position to foreclosure his tax certificate. or it is
A tax deеd constitutes valid muniment 133, Cremin nullity. Quigley, v. true question constitutionality statute, below, supra, presented was the court but as complainant not have the relief court could below statute, under the that sought, except provisions of relief, should not if the statute is un- grant clearly constitutional, and, therefore, void. stated, 13, 1939,
For the reasons our judgment of June is re-affirmed and adhered to.
So ordered. Brown,
Whitfield J., concur. J.
Chapman dissent. J. Terrell Justice Compiled General 21-A Rule Rules of this Court. Weaver-Loughridge Company, Pinellas Lumber Lum Company, Inc., Lynch, ber Owners, v. Maurice B. ux., etc.