City of Winter Haven v. Lake Elbert Citrus Fruit Co.

• Decision Date: 22 January 1936
• Parties: CITY OF WINTER HAVEN et al. v. LAKE ELBERT CITRUS FRUIT CO.
• Court: Florida Supreme Court

165 So. 360

122 Fla. 422

CITY OF WINTER HAVEN et al. v. LAKE ELBERT CITRUS FRUIT CO.

Florida Supreme Court, Division B.

January 22, 1936

Suit by the Lake Elbert Citrus Fruit Company against the City of Winter Haven and others. Decree for complainant, and defendants appeal.

Affirmed. Appeal from Circuit Court, Polk County; H. C Petteway, judge.

COUNSEL

Henry Sinclair, of Winter Haven, and Huffaker & Edwards, of Bartow for appellants.

Maxwell & Cobbey, of Tampa, for appellee.

OPINION

TERRELL Justice.

The Legislature of 1925 enacted chapter 11301, Special Acts of Florida, extending the corporate limits of the city of Winter Haven to include the town of Florence Villa and a large area of other territory. Soon after the passage of this act, the enlarged city, pursuant to chapter 9298, Acts 1923, paved certain streets within its boundary as enlarged but without its boundary prior to enlargement, and levied special assessments against the abutting property to pay for said improvements. Between the date made and the fall of 1931, payments in the sum of $6,697.62 were made on these special assessments.

In November, 1931, its special assessment liens having matured the city instituted suits to foreclose against various claimants, one of which described the lands involved in this litigation and owned by appellee. Appellee suffered a decree proconfesso to be entered against it on the representation of the then city attorney that if it (appellee) would permit this to be done the city would at the foreclosure sale buy in the property and resell it to appellee at a price much below the amount due the city on the lien.

The suit against appellee was prosecuted to foreclosure and the city purchased the lands as agreed, but has never reconveyed them to appellee as it promised to do. In October, 1932, it (city) made a contract to convey said lands to Badger Investment Company, Inc., for a valuable consideration; the latter being then on knowledge of the agreement between the city and appellee. In March, 1934, chapter 11301, Sp.Acts 1925, the act enlarging the city and the act under which these assessments were made, was held to be unconstitutional and void in the case of State ex rel. Landis v. City of Winter Haven, 114 Fla. 199, 154 So. 700.

In July, 1934, less than six months after the last-named decision, appellee, as complainant, by leave of the court first had filed its bill in the nature of a bill of review setting up the invalidity of the assessment liens against its lands and the act under which they were authorized and issued, the nonexistence of the corporation which brought the foreclosure suit, the fraud of the city in obtaining the decree of foreclosure, the fraudulent agreement with appellee, and praying that the final decree and decree confirming the sale be set aside and vacated. A motion to dismiss the bill in the nature of a bill of review was denied, and the instant appeal was taken from that decree.

It is first contended that the bill should have been dismissed because the complainant did not offer to do equity by restoring to appellant any part of the funds due it on the special assessment.

The general rule is that before a suit to set aside a tax assessment, tax sale certificate, or other lien for unpaid taxes, can be maintained the complainant must, as a condition precedent, pay or offer to pay, as the court or statute may require, all taxes that could have been legally assessed against the property. When the validity of the entire tax is being contested, as in the case at bar, because of utter lack of power to impose it, this rule is not applicable. In such cases the complainant will not be required to pay any part of the tax as a condition to the...