Culmer v. Office Realty Co.

• Decision Date: 16 May 1939
• Parties: CULMER et al. v. OFFICE REALTY CO.
• Court: Florida Supreme Court

189 So. 52

137 Fla. 675

CULMER et al. v. OFFICE REALTY CO.

Florida Supreme Court

May 16, 1939

Rehearing Denied June 5, 1939.

Suit by the Office Realty Company against Margaret Culmer and another to foreclose the lien of a portion of a state and county tax sale certificate. From orders striking parts of an answer to the bill, defendants appeal.

Affirmed. Appeal from Circuit Court, Dade County; Paul D Barns, Judge.

COUNSEL

R. B Gautier, of Miami, for appellants.

Stanley C. Myers and Odell Kominers, both of Miami, for appellee.

OPINION

WHITFIELD Presiding Justice.

This appeal is from orders striking parts of an answer to a bill of complaint in a tax foreclosure suit brought to enforce the lien of a portion of a State and county tax sale certificate No. 6779, covering 'Lot 3 of Home Addition to Miami, a re-subdivision of Erickson's Subdivision, as per plat thereof recorded in Plat Book B, Page 124, of the Public Records of Dade County, Florida.'

It is alleged that the tax sale certificate was issued to the State July 2, 1934, at a tax sale for the unpaid taxes for the year 1933, and that the portion of said certificate No. 6779, as above described and called Parcel No. 3, was purchased by the plaintiff on November 6, 1936, the consideration paid by plaintiff included State and County taxes on said Parcel No. 3 for the years 1933 to 1936, inclusive together with interest and Clerk's fees.

A portion of the defendants' answer which was stricken is as follows:

'That by virtue of Section 1, Chapter 17400, Acts of 1935, said tax certificate #6779, Plaintiff's Exhibit #5' (tax sale certificate No. 6779) 'was not on November 6, 1936, and is not now subject to sale by the Clerk of the Circuit Court, in and for Dade County, Florida, to plaintiff, under the allegations of said bill, and that said sale as shown to plaintiff, Exhibit #6, was ultra vires, null, void, of no force, virtue or binding effect.

'That said certificate #6779 when issued on July 2, 1934, was issued against the homestead as hereinbefore set forth, and for State and County taxes for the year 1933; that under the terms of Section 1, Chapter 15053, Acts of the Legislature of 1931, said certificate #6779 was not when purchased by plaintiff, is not now, and will not be, subject to foreclosure until after July 2, 1938. That in case the Court shall find said certificate #6779 or any part thereof valid in the hands of plaintiff, the defendants as a matter of equity offer to pay the same.'

The appellants present the following:

'Question Involved

'First Question

'Is that part of Section 1 of Chapter 15053, of the Acts of 1931, reading as follows: 'That no suit shall be brought on any tax sale certificate upon any homestead until after the expiration of four years from the date of such certificate', repealed by section 1 of chapter 17442, Acts of 1935?

'The lower court answered this question in the affirmative.

'Second Question

'Is section 1 of chapter 17442, Acts of 1935, retroactive and does the repeal therein contained affect Tax certificates issued prior to the repealing Act?

'The lower court answered this question in the affirmative.

'Third Question

'Did the State have the right to sell the tax certificate sued on after the same was issued to the State and held by it for more than two years after its date prior to July 1st, 1938, as provided in section 1 of Chapter 17400, Acts of 1935?

'The lower court decided this question in the affirmative.'

Section 13 of Chapter 14572, Acts of 1929, Ex.Sess., as originally enacted, read: 'Any holder of a certificate of tax sale or a tax deed therefor, whether heretofore or hereafter issued, including the State of Florida, is hereby authorized on and after January 1st, 1930, to file a bill in chancery to foreclose the lien of such certificate or deed, and the practice, pleading and procedure for foreclosure shall be in accordance with the practice, pleading and procedure for foreclosure of mortgages on real estate, except as herein otherwise provided and except that no personal judgment shall be given. No suit shall be brought on any tax sale certificate until after expiration of two years from the date of the certificate nor shall the State commence any such suit before the time hereinafter provided for such suit by the State.'

Chapter 15053, Acts of 1931, under an appropriate title reproduced section 13 of Chapter 14572 and added thereto the following:

'provided, however, that no suit shall be brought on any tax sale certificate upon any homestead until after the expiration of four years from the date of such certificate.' Section 1.

Section 1 of Chapter 17442, Acts of 1935, expressly repealed section 13 of Chapter 14572 of the Acts of 1929, Ex.Sess., but did not refer to Chapter 15053, Acts of 1931, which had amended said section 13, Chapter 14572, Acts of 1929, Ex.Sess., as above stated.

The result of the above stated enactments is that Chapter 15053, Acts of 1931, amended section 13, Chapter 14572; and later Chapter 17442, Acts of 1935, repealed section 13, Chapter 14572, as amended by section 1, Chapter 15053.

When section 1 of Chapter 15053, Acts of 1931, became effective, it in law superseded and took the place of section 13, Chapter 14572, as originally enacted; and section 1, Chapter 15053, being in law section 13 of Chapter 14572, when section 1 of Chapter 17442, Acts of 1935, was enacted, such section 13, Chapter 14572, was repealed by section 1, Chapter 17442, Acts of 1935.

Section 1 of Chapter 17400, Acts of 1935, is as follows:

'Section 1. That Chapter 16252, Laws of Florida, 1933, be amended, by amending Section 1 thereof so as to read as follows:

"Section 1. All tax certificates and liens for delinquent taxes on real estate for the year 1933 and all previous years, whether suits for the enforcement thereof are now pending or not, shall, after the expiration of two years from the date of issuance, be held by the State of Florida without sale or enforcement for and during the period of time beginning with the date upon which this Act shall become effective, and ending with the first day of July, 1938, and during such period no such tax certificate or lien for delinquent taxes held or owned by the State of Florida shall be sold or transferred to any person or persons whomsoever than the actual bona fide owner of the fee title to such real estate, provided that nothing herein contained should in any wise repeal or abrogate the requirements of House Bill No. 303 passed at the 1933 Session."

When lands are sold under the statutes for the nonpayment of taxes due thereon, the tax collector issues to purchasers at the sale tax sale certificates which evidence a potential sale and purchase of the described lands, and also are evidence of amounts that are past due and payable to the State and to other taxing units, for ad valorem taxes that had been levied and assessed pursuant to law upon described lands for stated years. The statute creates a lien upon the lands for the taxes of each year. If there are no bidders at the sales the tax collectors are required by statute to bid in the lands for the State and the certificates are issued in the name of the State Treasurer. The certificates so issued to the State are held for sale or redemption, the proceeds to be duly apportioned to the State and other taxing units to which the unpaid taxes are due and payable.

When the tax sale certificates are issued at the tax sales to private purchasers who pay the amounts due as taxes and costs, or when such certificates are issued to, and afterward are duly transferred by, the State to private parties, the rights of such private purchasers are governed by the law in force at the time the tax sale certificates are issued to them or to their assignors at the tax sale or at the time the State transfers the...