Bird v. Benlisa

• Decision Date: 26 January 1892
• Citation: Bird v. Benlisa, 142 U.S. 664, 12 S.Ct. 323, 35 L.Ed. 1151 (1892)
• Parties: BIRD v. BENLISA
• Court: U.S. Supreme Court

142 U.S. 664

12 S.Ct. 323

35 L.Ed. 1151

BIRDv.BENLISA.

January 26, 1892.

STATEMENT BY MR. JUSTICE BREWER.

This was an action of ejectment brought in the circuit court of Orange county, Fla., on May 25, 1887.The action was subsequently removed to the circuit court of the United States for the northern district of Florida.A trial in that court resulted in a verdict and judgment for the defendant in error, plaintiff below.That such judgment was correct, is conceded, unless plaintiff's right to recover was defeated by a tax-deed, with accompanying record and possession.That deed purported to be based on a sale for the taxes of 1873, and the description therein was as follows: Section 39, township 16, of range 27;section 37, in township 17, of range 27; and section 38, in township 17, of range 28,—containing 9,909 3/4 acres, lying and being in Orange county, Fla.It was executed December 13, 1876, and recorded the same day.The assessment roll was produced in evidence, and on it was found no description like that contained in the deed.There was, however, this entry, which plaintiff in error claimed was intended as a description of the lands found in the deed, to-wit:

Owner.Des. of Land.Sec. Town.Range.Acres.Am't.

Mazell, Partin & Partin Alexander --------- --------- -------- 7,800 $18 22

Spring Creek

Grant

Defendant relied on section 63, c. 1976,Laws 1874, p. 27, (which is the same as section 20, c. 1877,Laws 1872,) as follows:

'No suit or proceeding shall be commenced by a former owner or claimant, his heirs or assigns, or his or their legal representatives, to set aside any deed made in pursuance of any sale of lands for taxes, or against the grantee in such deed, his heirs or assigns or legal representatives, to recover the possession of said lands, unless such suit or proceedings be commenced within one year after the recording of such deed in the county where the lands lie, except upon the grounds that the said lands were not subject to taxation, or that the taxes were paid or tendered, together with the expenses chargeable thereon, before sale, and the recording of such deed shall be deemed such assertion of title or such entry into possession by the grantee, his heirs or assigns, as to authorize such suit or proceedings against him or them as for an actual entry.'

J. C. Drew, A. H. Garland, and H. J.May, for plaintiff in error.

J. C. Coopel and H. E. Davis, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing languag, delivered the opinion of the court.

It is true that this tax-deed is regular in form, but there is no connection between the description in it and any to be found in the assessment roll; and it has been held by the supreme court of Florida that the limitation section does not prevent a suit by the owner to recover lands after the lapse of a year, when 'the calls in the deed of the clerk are materially different from the lands described on the assessment roll, and sold by the collector.'Carucross v. Lykes, 22 Fla. 587.In that case it appeared that on the assessment roll the land was described as 'blocks 10, 12, 13, and 16,' while the deed purported to convey 'blocks 10, 12, and 13, in the town of Tampa, and according to the general map of said town.'In the opinion the court said: 'The description of the land on the assessment roll is an important element in the purchaser's title, and it must be sold by the collector and deeded by the clerk in accordance with such description.* * * The statute was intended to prevent, after the lapse of a year, suits by the former owner for recovery of lands upon technical grounds, for informalities and irregularities in the proceedings.It contemplated that the deed of the clerk alluded to would be to lands assessed, and none other.The clerk can only make a deed to the lands sold by the collector.The collector can only sell the lands as described in the assessment roll.* * * Section 20, above, only extends its protection to the lands assessed, because if other lands, or lands differing materially in description, are deeded by the clerk, the deed 'is not a deed made in pursuance of a sale of land for taxes,' nor is a suit for the recovery of possession thereof a suit for lands sold for taxes.'

In Grissom v. Furman, 22 Fla. 581, the difference between the description on the assessment roll and in the tax-deed consisted simply in a reversal in the numbers of the township and range, the former being 'township 21, range 11,' and the latter, 'township 11, range 21;' but it was held that the deed was a nullity.In Townsend v. Edwards, 25 Fla. 582, 6 South. Rep. 212, the tax-deed being regular in form, the trial court had refused to permit the introduction of the assessment roll in evidence.The supreme court reversed the judgment, on the ground of error in that ruling, thus reaffirming the cases in 22 Fla.In Sloan v. Sloan, 25 Fla. 53, 5 South. Rep. 603, an action to remove a cloud upon the title, which cloud consisted in a tax-deed, it appeared that this deed was regular in form; but it having been alleged and proved that the assessment was made by the collector of revenue, and not by the assessor of taxes, it was held that the deed was voidable, and was not within the protection of the limitation section heretofore referred to.The court observed: 'If the lands were assessed on the roll when it went into the hands of the collector, the owner was presumed to know it, and if he did not pay the taxes, and a sale was made and a deed executed, he was also charged with notice of the consequences which the statute imposed upon him.If the lands were not upon such roll, he was likewise presumed to know it, and that the only consequence was that they would be assessed the next year as well for that as for the preceding year; but the law did not call upon him to anticipate either an assessment or sale by the collector, or subject him to the provisions of the sixty-third section on account of such assessment or sale.This tax-deed is not within the protection of the sixty-third section, but is a cloud upon the land described in it.'

In Kansas, a like ruling has been made as to the...