Coult v. Mcintosh Inv. Co.

• Citation: 133 Fla. 141,182 So. 594
• Parties: COULT et al. v. McINTOSH INV. CO.
• Decision Date: 07 July 1938
• Court: United States State Supreme Court of Florida

182 So. 594

133 Fla. 141

COULT et al. v. McINTOSH INV. CO.

Florida Supreme Court

July 7, 1938

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Action in ejectment by the McIntosh Investment Company against A. A Coultand others. Judgment for plaintiff, and defendants bring error.

Affirmed.

COUNSEL

Claude Ogilvie, of Jacksonville, for plaintiffs in error.

Gray &amp Johnson, of Orlando, for defendant in error.

OPINION

BROWN, Justice.

This writ of error is from a final judgment in ejectment proceedings terminating in favor of plaintiff. The controlling question submitted to the trial court was the validity of a tax deed issued to the plaintiff on March 18 1935, based on a tax certificate dated August 3, 1931, the property having been sold as the property of Mayer Realty Company for unpaid taxes for the year 1930.

The McIntosh Investment Company filed its declaration in ejectment, in the statutory form, against A. A. Coult and Gladys Coult, his wife (shown to have been the owners of the legal title from June 5, 1930, until tax deed issued); Joe P Walker; The Security Land & Insurance Co.; W. V. Knott as State Treasurer and ex officio Insurance Commissioner of the State of Florida and as Trustee; and the Security Land & Investment Co. Mr. Knott as State Treasurer, etc., held by assignment from Security Land & Investment Co. a mortgage for $22,000 executed by the Coults June 5, 1930 (the date on which they acquired title), to one of the corporate defendants, assigned to the other, and by it assigned to Knott on June 23, 1930.

The Security Land and Insurance Co. and W. V. Knott, as State Treasurer and ex officio Insurance Commissioner of the State of Florida and as trustee, filed their plea of not guilty to the declaration, and Mr. Knott filed a separate plea denying possession of the property, or the receipt of any of the profits. Thus the pleas admitted the possession of the defendant Security Land & Insurance Co., and put the title to the property in issue.

None of the other defendants filed any pleadings whatever.

Upon the issues thus made by the pleadings, the parties went to trial. After introduction of all the evidence by the parties, counsel for plaintiff made a motion for a directed verdict. The motion was granted, and the court thereupon instructed the jury to bring in a verdict in favor of plaintiff, which they did. Motion for new trial was denied. Judgment for plaintiff was entered, with award of writ of possession; the matter of damages having been waived by plaintiff.

Writ of error was taken from the final judgment in the names of each of the parties made defendants below, including those who failed to appear or plead to the declaration.

The first question presented is whether the failure of the clerk to make an effort to ascertain the name and address of the owner of the land and mail him a copy of the notice of the application for a tax deed on the land is a valid defense to an ejectment suit brought on such tax deed as an absolute conveyance of title.

The plea of not guilty in ejectment puts in issue the title to the lands in controversy. See section 5044(2), C.G.L.1927; Dallam v. Sanchez, 56 Fla. 779, 47 So. 871; Buesing v. Forbes, 33 Fla. 495, 15 So. 209; Phillips v. Lowenstein, 91 Fla. 89, 107 So. 350. Such plea admits defendant's possession at the time the action was instituted and, in order for the defendant to deny possession, he must do so by a special plea to that effect. Section 5044(2), C.G.L.1927. It is not inconsistent to file a plea of not guilty, which puts title in issue and admits possession, with a special plea denying possession. Gill v. Graham, 54 Fla. 259, 45 So. 845.

The burden, in this case, was on the plaintiff, to prove, by a preponderance of the evidence, that it had superior title to the property in question. By introducing in evidence the tax deed, which on its face appeared to be valid, plaintiff made out a prima facie case (Sec. 1003, C.G.L., as amended by Acts 1929, c. 14572, Ex.Sess., § 12; Clark v. Cochran, 79 Fla. 788, 85 So. 250), and thereupon the burden shifted to the defendants, who attempted to show that the tax deed was invalid because not issued according to law. The court admitted the tax deed in evidence, over the objections of defendants, with the understanding that they would be permitted, if they could, to show its invalidity.

Upon the point raised by the first question presented, D. S. Banner, Deputy Clerk of the Circuit Court, testified that notices of the application for the tax deed were mailed to the Mayer Realty Co. and to Charles Mayer, the address of both being 210 South Main Street, Orlando, Florida, they having paid taxes for certain years previous to the tax deed. The parties stipulated that the records of Orange County show that A. A. Coult and Gladys Coult, his wife, have been vested continuously with the fee simple title to the premises from June 5, 1930, to March 18, 1935, when said tax deed was issued by the clerk of the circuit court to plaintiff. D. S. Banner, deputy clerk, further testified that no notices were mailed to A. S. Coult and Gladys Coult, his wife (the record owners), or to any other parties than those already mentioned; that he did not make any inquiry as to who the owner of the property was, other than the usual procedure of going to the last assessment roll and seeing who paid the taxes for the two years preceding the year represented by the tax certificates; that no effort was made by the clerk to ascertain who was the fee simple owner of the property prior to issuance of the tax deed. There was no evidence that the clerk or his deputy knew who owned the property at the time of publication of notice, which knowledge, or the lack of it, is made important in view of the language of Section 1001, Comp.Gen.Laws, which provides for such mailing of notice to the owner 'if such owner be known to said clerk.' If the clerk has such knowledge, the statute requires him to mail copy of the notice to the owner.

Section 1001, C.G.L., in effect at the time of the issuance of the tax deed on March 18, 1935, provided that no tax deed should issue for lands sold for taxes until the clerk of the court should give at least 30 days' notice of application for such deed by publishing such notice once a week in some newspaper in the county, or in the event there is no newspaper in the county, by posting the notice at least 30 days at the court house door and at two or more public places in the county. Compliance with the requirements of this section is jurisdictional, as we shall presently show.

Section 1001, C.G.L., likewise in effect at the time of issuance of the tax deed, gave the form of notice for application for tax deed, thus required to be published, and then provided:

'It shall be the duty of the clerk issuing such notice to mail a copy of said notice of application for tax deed to the owners of the property for which a tax deed is applied, if such owner be known to said clerk. But this requirement is directory only, and the failure of the clerk to mail such notice to the owner of the property involved in said application shall not affect the validity of the tax deed issued pursuant to such notice.'

This quoted portion of the statute was enacted as part of Chapter 12409, Acts of 1927, which to that extent amended section 777 of Rev.Gen.Stats. of 1920, and hence cases cited in the brief of counsel which were decided by this Court involving tax deeds issued prior to the effective date of the 1927 act cannot aid in an interpretation of this provision of the statute.

Section 777 of Rev.Gen.Stats. of 1920, following the language of chapter 4888, Laws of 1901, provided that 'The clerk shall also mail a copy of said notice of application for tax deed to the owner of the lands for which a tax deed is applied for. If the owner is unknown, then such notice shall be delivered or mailed to the person last paying taxes on said property.' In a number of cases, this Court held that this provision was mandatory, required the clerk to make reasonable inquiry, and failure to comply therewith rendered the tax deed invalid. But, as above shown, the legislature, in 1927, changed the statute to read as above set forth, and expressly made this provision as to mailing notice directory and plainly says that the failure of the clerk to comply therewith shall not affect the validity of the tax deed.

In the case of Tax Securities Corporation v. Borland, 103 Fla. 63, 137 So. 151, this Court, speaking through Mr. Justice Buford, said (page 155):

'The provisions of the statute relative to notice of issuance of tax deed are jurisdictional so far as the authority of the clerk of the circuit court to issue such deed is concerned. The statute provides for process by the publication and serving of notice of the application for tax deed by which the owner is foreclosed of his right of redemption. This process may be substituted by process in foreclosure, if foreclosure is resorted to.'

It is contended that this quoted statement from the case of Tax Securities Corporation v. Borland, supra, indicates that the mailing of the notice to the owner, as well as the publication of the notice of application for a tax deed, is jurisdictional, but a careful reading of the entire opinion shows that the exact question we are now dealing with was not decided in that case. But the holding of the Court, speaking through Mr. Justice Buford, was:

'Section 1 of chapter 14572, supra, must be construed with the other provisions of the act, and, when so construed, the provisions of this section will apply in these cases where foreclosure of a tax certificate or of a tax deed is resorted to to enforce the lien for taxes and to foreclose adversely...