Cook v. Pontious

• Decision Date: 01 August 1929
• Citation: 98 Fla. 373,123 So. 765
• Parties: COOK et al. v. PONTIOUS.
• Court: Florida Supreme Court

123 So. 765

98 Fla. 373

COOK et al. v. PONTIOUS.

Florida Supreme Court

August 1, 1929

Bill by W. H. Pontious against Isaac T. Cook and another. From an interlocutory decree, defendants appeal.

Reversed and remanded, with directions.

Syllabus by the Court

SYLLABUS

Holders of mortgage held not entitled to maintain action to quiet title (Rev. Gen. St. 1920, §§ 3213, 3837, Comp. Gen. Laws 1927, §§ 5005, 5725). Since, under Rev. Gen. St. 1920, § 3837, Comp. Gen. Laws 1927, § 5725, a mortgage does not convey any title to property described therein, holders of mortgage had no such legal or equitable title to property as would entitle them to maintain action to quiet title under Rev. Gen. St. 1920, § 3213, Comp. Gen. Laws 1927, § 5005.

Complainant held not entitled to maintain suit to quiet title under drainage tax deed against alleged cloud thereon from former record title and parties holding lien thereon (Rev. Gen. St 1920, § 3213, Comp. Gen. Laws 1927, § 5005). Complainant claiming under drainage tax deed against alleged cloud thereon by reason of former record title and parties holding lien thereon held not entitled to maintain suit to quiet title under Rev. Gen. St. 1920, § 3213, Comp. Gen. Laws 1927 § 5005, where there was no allegation in bill that there had been any attempt on part of holders of former record title or those claiming liens or interest under them to assert any claim of title to property subsequent to issuance of drainage tax deed.

Appellate court will take notice that bill in equity is without equity although appellant has ignored it. Where it is apparent to appellate court that bill in equity brought to it on appeal is without equity, appellate court will take notice of defect, although appellant has ignored it.

Appeal from Circuit Court, Glades County; George W. Whitehurst, judge.

COUNSEL

O. S. Miller, of West Palm Beach, for appellants.

R. C. Horne, of Madison, for appellee.

OPINION

CAMPBELL Circuit Judge.

In the court below the appellee, as complainant, filed bill in equity seeking to have the title to certain real estate quieted.

The bill of complaint alleges that the complainant has a fee-simple title to the real estate described, by virtue of a drainage tax deed thereto made, executed, and delivered to him by the clerk of the circuit court of Glades county, Fla.

The alleged owners of the former record title to the property involved, the holders of certain mortgages on the lands, made by the owners of the former record title prior to the issuance of the drainage tax deed under which complainant claims title, and all others claiming title to the property, whether known or unknown, are made respondents.

The appellants were made respondents in the bill of complaint because they were the holders of mortgages on the property, made by the holders of the former record title, before the drainage tax deed issued.

The bill of complaint, in substance, prays for the removal and cancellation of any claim or interest that the respondents, jointly or severally, might hold to the property, adverse to, or in derogation of, complainant's title, and clearing and confirming the title to the complainant to said real estate against the claims, liens, and interests of the several respondents, and all persons having or claiming any interest therein adverse to complainant.

The appellants, as respondents in the court below, filed separate answers to the bill of complaint, in which each for himself sets forth in detail the mortgage lien on the real estate involved and the indebtedness thereby secured, owned, and held by him. Each of the respondents also sets forth, in his separate answer, many alleged fatal defects and irregularities in the assessment of the lands for drainage tax, the sale of same to satisfy such tax, and the proceedings attending the issuance of the drainage tax deed, under which complainant claims title.

Upon the filing of the answers, the complainant in the court below filed a motion to strike each answer as a whole and each paragraph of such answers, alleging defects and irregularities in the proceedings attending the assessment of the property for drainage tax, the sale of same for such tax, and the issuance of the drainage tax deed.

The motions to strike the answers as a whole were based upon the claim that each answer upon its face revealed that the respondent filing same was not claiming to defend or seek the affirmative relief prayed for by him, as the owner of title to the property, either legal or equitable, but only as a holder of a mortgage lien thereon.

Upon the coming on of the motions for hearing, the chancellor rendered a decree striking out the answers of the respective respondents, except 'the parts thereof in each of answers setting up that the lands in which the said two defendants are interested were the liable to the said drainage tax or that the said drainage tax deed had been paid at the date of sale or that notice of the application for the said drainage tax deed or of the expiration of the period of redemption was not at any time posted or published or mailed or delivered to the owner or person last paying the taxes on said lands in which the said two defendants are interested and excepting that part of said answers setting up advertising in De Soto instead of Glades County, Florida, as to said drainage tax certificate subsequent to the creation of Glades County, Florida, and excepting that part of said answers setting up advertising in De Soto instead of Glades County, Florida, as to said drainage tax certificate or sale thereof subsequent to creation of Glades County, Florida.'

It is from that interlocutory decree that the case has been appealed.

Many errors are assigned before us, but it will not be necessary, under the view we have taken of the case, to consider many of them in this opinion.

Instead of demurring to the bill, and thus testing the equity in same, the respondents, as we have already observed, filed answers, asking for affirmative relief against the drainage tax deed, as if each was an owner of, or had an interest in, the title to the lands.

It is apparent from the decree made by the court below that it did not make the order granting the motion to strike upon the theory that the respondents filing the answers were not proper parties to claim the relief prayed for in the respective answers.

Under the statutes of Florida, a mortgage is a specific lien on, and does not convey any title to, the property described therein. See section 3837, Rev. Gen. Stat. 1920 (section 5725, Comp. Gen. Laws 1927).

Section 3213, Revised General Statutes 1920 (section 5005, Comp. Gen Laws 1927), authorizes one who claims title legal or equitable in real estate to maintain a bill in equity to quiet the title...