City of Orlando v. Equitable Bldg. & Loan Ass'n

• Decision Date: 25 February 1903
• Citation: 33 So. 986,45 Fla. 507
• Parties: CITY OF ORLANDO v. EQUITABLE BUILDING & LOAN ASS'N.
• Court: Florida Supreme Court

33 So. 986

45 Fla. 507

CITY OF ORLANDO v. EQUITABLE BUILDING & LOAN ASS'N.

Florida Supreme Court

February 25, 1903

In Banc. Appeal from Circuit Court, Orange County; Barron Phillips, Judge.

Bill by the Equitable Building & Loan Association against the city of Orlando. Decree for plaintiff, and defendant appeals. Affirmed in part and reversed in part.

Maxwell J., dissenting.

Syllabus by the Court

SYLLABUS

1. The city of Orlando, in 1893, 1895, 1896, and 1897, could become the holder of tax certificates based upon its sales for city taxes for lands bid off for it by its collector in cases where there were no other bidders, and it could, after the periods of redemption expired, procure deeds upon such certificates from the clerk of the circuit court that would be prima facie evidence to the same extent as tax deeds executed to individuals upon certificates held by them.

2. Upon appeal from a decree canceling tax certificates held by a city as clouds upon complainant's title, the appellate court will not adjudge such decree erroneous upon the ground that the bill does not allege a tender or offer to pay the tax for which the land was sold, where the appellant does not suggest or insist upon such supposed defect in the bill as a ground for reversal, even though a general demurrer for want of equity might be sufficient to raise the question, and a demurrer of this nature was interposed and overruled in the court below, and the ruling thereon is assigned as error in the appellate court.

3. A general demurrer to a bill in equity should be overruled if the bill states any ground for equitable relief.

4. Grounds of demurrer to a bill in equity which seek to have the court hold the whole bill bad for objections applicable only to parts thereof, are properly overruled.

5. Even after a decree pro confesso, relief must be granted only as to the case made by the bill, and, if the bill makes no case for equitable relief, no decree ought to be entered thereon for complainant.

6. The failure of the assessor of the city of Orlando to annex to the city assessment roll an affidavit in the form prescribed by section 8, c. 3786, p. 218, Acts 1887, invalidates the assessment.

7. The city clerk of Orlando was not, in 1893 and 1895, authorized to take the affidavit of the city assessor, required to be annexed to the assessment roll by section 8, c. 3786, p. 218 Acts 1887.

8. The official publication of notice of tax sales in two newspapers, where the law requires it to be published officially in one only, renders the sales invalid.

9. The failure of the tax collector of the city of Orlando to forward a copy of his report of city tax sales of 1897 to the Comptroller does not render such sales invalid.

10. Failure to comply strictly with those provisions of tax laws which are intended for the guide of officers in the conduct of business devolved upon them, designed to secure order system, and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected, will not usually render the proceedings void; but where the requisites prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and a disregard of them might, and generally would injuriously affect his rights, they cannot be disregarded, and failure to comply with them will render the proceedings invalid.

11. The provisions of section 8, art. 9, Constitution of 1885, to the effect that no person or corporation shall be relieved by any court from the payment of any tax that may be illegal, illegally or irregularly assessed, until he or it shall have paid such portion of his or its taxes as may be legal and legally and regularly assessed, have no application to proceedings to set aside as clouds upon title tax certificates or deeds made in pursuance of sales for nonpayment of taxes.

COUNSEL Wm. H. Jewell, for appellant.

L. G. Starbuck, for appellee.

OPINION

CARTER J.

This cause was duly considered by Division B, and, there being a difference of opinion among its members as to the proper disposition of the case, it was referred to the court in banc for decision.

On April 25, 1898, appellee filed its bill in the Orange county circuit court, alleging that it was the owner in fee simple and in possession of a certain described part of lot 1, block 24, R. R. Reed's addition to Orlando; that appellant, the city, held four tax certificates tificates issued in pursuance of sales made for taxes assessed by it embracing said land in whole or in part; that each certificate was null and void for reasons hereinafter mentioned, and praying that they be canceled as clouds upon the title. Appellant demurred to the bill, and upon the hearing the demurrer was sustained as to certain grounds and overruled as to others, whereupon appellee dismissed so much of the bill as related to those grounds of demurrer which had been sustained, and appellant was required by the court's order to answer at a fixed time. No answer having been filed, a decree pro confesso was entered, and thereafter, on October 22, 1898, a final decree was rendered, whereby each of the four certificates was declared null and void, and appellant was directed to surrender same for cancellation. From that decree the present appeal was taken, and the errors assigned question the propriety of the ruling on the demurrer and of the final decree.

From the abstract it appears that the grounds alleged in the bill for cancellation of the several tax certificates, after it had been partly dismissed to conform to the ruling on demurrer, were as follows: As to certificate No. 107, sales of 1893, and certificate No. 203, sales of 1895, that the city tax assessor made the affidavit required by law before the city clerk, who was not an officer authorized to administer oaths. As to certificate No. 175, sales of 1896, 'because the notice of said tax sale was published in two newspapers, to wit, the Orlando Star and the Daily Reporter, whereas the law requires that it be published in a newspaper.' As to certificate No. 147, sales of 1897, because no report of said tax sale for 1897 was filed in the office of the Comptroller of the State, as required by law.

The grounds of demurrer that were overruled were as follows: The affidavits before the city clerk were a sufficient compliance with law, and, if not, the defect was not so material as to make the assessments or sales based thereon invalid. The publication of notice of tax sale in two newspapers was not thereby invalid. There is no equity in complainant's bill. Municipalities in this state are not required to file report of tax sales with the State Comptroller.

The bill seeks to cancel, as clouds upon title, tax certificates held by a city, based upon its own sales for city taxes. If under the law, the city was not authorized to take a certificate of sale for its own taxes, or if it had such power, but no deed could issue to the city upon it, or if it would take a deed, but such deed would not be prima facie evidence, perhaps the jurisdiction of a court of equity could not be invoked to cancel such a certificate, for, if the city could not take a certificate upon the tax sales, such certificate would be void upon its face, and therefore would not be a cloud upon title; or, if such a certificate, though valid, could never become the basis of a deed that would prima facie convey a valid title; or if, in proving title under a deed issued thereon, the evidence necessary to be produced by the claimant would inevitably show the defects complained of in the bill--the certificate would not be a cloud upon title, so as to authorize its cancellation by a court of equity. Hughey v. Winborne, 44 Fla.601, 33 So. 249. The court is of opinion, however, that a city could become the holder of certificates such as the bill describes; that it could procure a deed upon such certificates; and that such deed would be prima facie evidence of the regularity of the proceedings under the statutes in force in this state at the time the bill was filed and decree rendered. The power of the city of Orlando to become the holder of certificates of sale for its city taxes seems to have been recognized in Stieff v. Hartwell, 35 Fla. 606, 17 So. 899. It is very generally held that, without statutory authority, a city cannot become the purchaser at a tax sale, and the question here presented is as to whether there is such statutory authority. Section 52, c. 4115, Acts 1893, and section 51, c. 4322, p. 33, Acts 1895, provide that at tax sales by collectors of revenue, 'in case there are no bidders, the whole tract shall be bid off by the collector for the state.' Section 57 of the former act and section 56 of the latter require the tax collector of any city or incorporated town to proceed substantially in the same manner in the collection of taxes and sale of lands and personal property for nonpayment of taxes as state tax collectors, which would authorize the city collector to bid off for the city any tract as to which there were no bidders. This authority, however, would not authorize a city to become a competitive bidder for real property at its tax sales, for it merely constitutes the city an involuntary purchaser of the property in case there are no bidders, but as such it is entitled to a certificate and a deed, the same as any other purchaser at such sales. Other provisions in these statutes recognize this power of cities to thus become involuntary purchasers at their tax sales. Thus, section 4 of each act makes liable to taxation lands sold for taxes for the use of cities, and section 60 of the act of 1893 and section 59 of the act of 1895 recognize the power in cities to hold certificates, and to take...