Sudduth v. Hutchison
| Decision Date | 01 August 1949 |
| Citation | 42 So.2d 355 |
| Parties | SUDDUTH et al. v. HUTCHISON et al. |
| Court | Florida Supreme Court |
J. M. & H. P. Sapp, Panama City, Keen, O'Kelley & Spitz, J. Velma Keen, and Chas. H. Spitz, Tallahassee, for appellants.
James N. Daniel, Chipley, for appellees.
The appeal is brought by the defendants below from a final decree entered on bill and answer.
The appellees, as plaintiffs below, instituted a suit under the provisions of sections 66.26 and 66.27, Florida Statutes 1941 Cum.Supp.1947, F.S.A., to quiet the title to certain lands acquired under a tax deed executed on August 4, 1944, and based on tax certificates issued in 1940 for 1939 taxes against lands assessed either in the names of persons other than the appellants or as 'unknown.' The appellants, and certain other persons which the bill alleged had or claimed some interest in the lands, either as former record title owners or as lien claimants under the record title owners, were made defendants in the suit.
The bill alleged that the tax deed and the title to the land conveyed thereby was acquired by the plaintiff, Van Horn, for the use and benefit of the plaintiffs, Hutchison and Jinks; that after the execution and delivery of the deed the plaintiffs took actual possession of the land conveyed, by enclosing the same with a substantial fence; that the appellees were in open, actual and exclusive possession of the property at the time of the institution of suit; and that after the issuance of the deed the plaintiffs paid subsequently accruing taxes on the property. The prayer of the bill was that the title to the lands be quieted and confirmed as against any adverse claims of the defendants.
The appellants, who claimed an interest in a portion of the lands described in the tax deed, filed a motion to dismiss the bill of complaint on the grounds, among others, that the bill wholly failed to show that as to such portion the title to the property was vested in the plaintiffs or that they were in possession of the property at the time of the institution of suit.
The motion to dismiss the bill was denied and the appellants, as defendants, were required to answer.
In the answer the said defendants admitted that Van Horn acquired the tax deed sued on but asserted that the deed was void and hence did not convey title to the land described therein, because of the fact that the notice of the application for the deed, as published by the clerk of the Circuit Court for Bay County, did not constitute such a sufficient notice of the intended sale of the lands involved as to give the clerk jurisdiction over said lands or to authorize the issuance of the tax deed; that the clerk well knew the post office address of each of the defendants and that the Cove Realty Company, Inc., was the record title owner of the lands subject to a mortgage held by Sudduth Realty Company, Inc.; that notwithstanding such knowledge the clerk failed to mail a copy of the notice of sale to the owner and the mortgagee, or to notify them of the application for the tax deed, and failed to execute, file and attach to the proof of publication, the certificate which the law requires to be made when actual notice to the record owner and lien claimants is not given; that the tax deed issued to Van Horn did not contain a full description of the land or the consideration paid for the deed.
On the issue of possession, the defendants alleged that as to that portion of the lands which they laid claim to,
The answer alleged, also, that as to the portion of the lands claimed by the defendants the defendant, H. L. Sudduth, acquired title thereto in 1925 and shortly thereafter went upon the same, 'individually, and as officer and agent of Sudduth Realty Company of Florida, a corporation * * * and improved the said land and took actual possession thereof by surveying, subdividing and platting said land, opening, grading and developing streets and ways to, over and across said land, and filed the plat thereof designated 'Sudduth Realty Company of Florida's Seventh Addition to Panama City, located in the Southwest Quarter of the Northwest Quarter of Section 15, and the Southeast Quarter of the Northeast Quarter of Section 16, Township 4 South, Range 14 West;" that in 1926 Sudduth Realty Company of Florida acquired title to the lands by warranty deed from H. L. Sudduth and wife, and that the said improvements were thereafter maintained and said actual and exclusive possession of said land retained by Sudduth Realty Company of Florida until said land as improved and the possession thereof were conveyed in 1930 by Sudduth Realty Company of Florida to Cove Realty Company, Inc.; that thereafter Cove Realty Company, Inc., claiming title to said land under the said deed of conveyance 'maintained the improvements thereon and continued in the exclusive actual possession thereof until the filing of this answer and was in the actual exclusive possession of said land at the time of filing this suit by the plaintiffs * * * that said plaintiffs never at any time took actual possession of said land nor did said plaintiffs at any time construct thereon a fence or enclose said land or any part thereof by a fence, substantial or otherwise * * *.'
Other matters were averred in the answer but we do not deem them necessary to a determination of the questions raised on the appeal.
Subsequent to the filing of the answer the plaintiffs moved for a decree on bill and answer. After argument of counsel, the chancellor granted the motion and entered a final decree in which he found the equities of the cause to be with the plaintiffs; that the defendants had no right, title or interest in the land conveyed by the tax deed; that the tax title should be quieted and confirmed as against the claims of the defendants; and that a portion of the costs should be assessed against the defendants.
The present appeal is from this final decree; the ultimate questions being whether the motion to dismiss should have been granted and whether the final decree should have been entered on bill and answer.
Section 66,26, supra, authorizes any grantee under a tax deed to quiet title to the lands conveyed thereby as against the holder of the former record title and all persons claiming any interest in the land or lien thereon acquired prior to the issuance of the tax deed. See Beebe v. Richardson, 156 Fla. 559, 23 So.2d 718; Sovereign Finance Company v. Beach, Fla., 38 So.2d 831. The bill of complaint filed pursuant to this statute set out the claim of the plaintiffs and supported it by a copy of the tax deed which was in the required statutory form; it alleged the tax deed holder to be in the actual, open and exclusive possession of all the property described in the deed; and it prayed that the title thereto be quieted and confirmed as against the defendants and other defendants named in the bill, whose claims or interests in the land appeared on the face of the bill to have been acquired by the defendants prior to the issuance of the tax deed. The chancellor did not err in denying the motion to dismiss the bill of complaint, for the bill did not wholly fail to state a cause entitling the plaintiffs to some form of equitable relief under the applicable statutes.
The remaining question is with respect to the propriety of entering the final decree on bill and answer.
Section 63.40, Florida Statutes 1941, F.S.A., authorizes a plaintiff in an equity suit, within ten days after an answer is filed, or within such further time as the court may allow, to move for a decree on bill and answer, and provides that 'if the motion be overruled the plaintiff shall have the right to proceed to trial, notwithstanding the motion or order...
To continue reading
Request your trial
-
Wells v. Thomas
...v. Bostwick. The court was accordingly in error in holding that the case at bar was governed by Kester v. Bostwick. See also Sudduth v. Hutchison, Fla., 42 So.2d 355 and Tindel v. Griffin, 157 Fla. 156, 25 So.2d Aside from this, if the alleged defects in Ashmore's tax deed could be said to ......
-
Blocker v. Ferguson
...Miami Bridge Company v. Miami Beach Railway Co., 152 Fla. 458, 12 So.2d 438; Sullivan v. Givens, 155 Fla. 445, 20 So.2d 493; Sudduth v. Hutchison, Fla., 42 So.2d 355. As appears on the face of the petition filed in the supplementary proceeding, the petitioner did nothing over a period of ap......
-
Heinberg v. Andress
...to a procedure to deprive an owner of his property by issuing a tax deed conveying it to another. In the case of Sudduth v. Hutchison, Fla., 42 So.2d 355, there appears a comment by the court which is inconsistent with what has been written in this case and with what we have quoted from the......