Day v. Benesh

• Court: Florida Supreme Court
• Writing for the Court: ANDREWS, C. PER CURIAM.
• Citation: Day v. Benesh, 104 Fla. 58, 139 So. 448 (Fla. 1932)
• Decision Date: 19 January 1932
• Parties: DAY v. BENESH et ux.

139 So. 448

104 Fla. 58

DAY v. BENESH et ux.

Florida Supreme Court

January 19, 1932

Commissioners' Decision.

Suit by Homer A. Day against Louis W. Benesh and wife, in which defendants prayed for affirmative relief. From a decree dismissing complainant's bill and granting relief to defendants, complainant appeals.

Reversed with directions.

Reversed. Appeal from Circuit Court, Palm Beach County; C E. Chillingworth, judge.

COUNSEL

Kearley Fisher, Van Metre & Chapman, of West Palm Beach, for appellant.

John Ziegler, of West Palm Beach, for appellees.

OPINION

ANDREWS C.

This cause is here for review upon appeal from a decree of the circuit court of Palm Beach county (1) dismissing the appellant's bill to quiet title and (2) rendering a decree in favor of appellee, pursuant to his answer praying for affirmative relief, canceling the deed of appellant and quieting the title in favor of appellee.

The facts in the case are practically undisputed. It appears that appellee Benesh was the owner of the fee-simple title to the property in question at the time a tax deed was issued by the state to one Harry Seemiller on July 16, 1921, based upon a tax levy for the year 1915 and a tax sale made on August 7, 1916, wherein the tax certificate was issued to the state. It further is shown that on September 14, 1921, Seemiller and wife conveyed the property by warranty deed to William T. Walker, and Walker and wife on March 29, 1923, conveyed it to Homer C. Day, appellant herein. It is admitted that Benesh was never in possession of the property.

The final result of the suit was that the chancellor canceled the tax deed, quieted the title as against complainant Day, and awarded possession to defendant Benesh upon the ground as stated in the decree that the tax deed was 'null and void.'

From this decree, appeal was taken to this court and the main questions presented are: (1) Whether or not the tax deed issued to Harry Seemiller is void on its face, and, if not, (2) does adverse possession for four years by the holder of a warranty deed, based upon a tax deed not void on its face, furnish a defense to the holder, as against a record title holder who has never been in possession, under section 794, Rev. Gen. St. of 1920 (section 1020, Comp. Gen. Laws 1927)?

We will first consider whether the tax deed is void on its face, as contended by appellee, by reason of defective description. The land is described in the tax deed issued July 16, 1921, as follows:

'Situated and being in the county and state aforesaid, and described as Lot 10, Block 207 Lake Worth containing ----- acres more or less.' The former parts of the deed describes the lot as being in Palm Beach County and State of Florida.

The tax sale certified to the state treasurer, dated August 7, 1928, describes the lot in substance as in above deed; and in the deed from Seemiller and wife to William T. Walker, under date of September 14, 1921, the property is described as follows:

'Lot 10 Block 207 in the Townsite of Lucerne, according to the Palm Beach Farms Company plat No. 2, pages 29 to 40, in the office of the Clerk of the Circuit Court of Palm Beach County, Florida. The Townsite of Lucerne is now known as Lake Worth.'

The deed from Walker and wife to complainant Day uses, in substance, the above description. By stipulation (page 42, record) between the parties to this suit, it is agreed that prior to the issuance of the tax deed by the state to Harry Seemiller on July 16, 1921, 'the fee simple title to the real estate described in complainant's bill of complaint and defendant's answer was vested in the defendant, Louis W. Benesh.'

Both the bill and answer describe the property as:

'Lot ten (10) in Block two hundred and seven (207) of the Townsite of Lucerne (now known as Lake Worth) according to plat thereof on file in the office of the Clerk of the Circuit Court,' etc.

The decree of the chancellor describes property as above described in the bill and answer, and decrees that the said tax deed issued by the state to Harry Seemiller, under which complainant Day and his immediate predecessors in title hold, to be 'null and void,' and cancels it of record. The decree does not state any specific ground for holding it null and void, but appellee contends that the deed is 'void on its face' because it fails to describe the property; the only description being 'Lot ten, Block 207 Lake Worth' in Palm Beach County, Fla.

This court said in the case of Jarrell v. McRainey, 65 Fla. 141, 61 So. 240, 241, that:

'The description of property in a tax deed must be certain in itself, or at least capable of being made certain by matters referred to in the deed itself, as relating to the description; and evidence aliunde, not referred to in the deed, cannot be used to ascertain the land intended to be conveyed.'

In the above case (also the case of Saddler v. Smith, 54 Fla. 671, 45 So. 718, 14 Ann. Cas. 570), there was involved tax deeds which so imperfectly described the land that they were declared void on their face, and it was held that the four-year adverse possession under a tax title provided by the statute did not apply.

The general rule is that a deed is not void for uncertainty (1) if the description is such as will enable a surveyor to ascertain and locate the land (Boley v. McMillan, 66 Fla. 159, 63 So. 703), or (2) if it is possible to ascertain and identify the land intended to be conveyed. Ansley v. Graham, 73 Fla. 388, 74 So. 505.

There is no reference in the tax deed to any recorded map or plat, but the description does indicate that the land is included in a survey as it is designated as 'Lot 10 Block 207, Lake Worth' in Palm Beach county, Fla., and the same as the former townsite of Lucerne. There can be no question that the four-year statute of limitation would not preclude the bringing of a suit to set aside a tax deed where the description of the property in the deed is different and not the land described on the assessment roll, Saddler v. Smith, supra; but that does not appear to be the case here.

As a matter of general knowledge, assessment rolls carry a more or less abbreviated description of lands and usually without reference to book or page of recorded plats or surveys which, however, when given, becomes a part of the legal description. If the former townsite of Lucerne had been changed to Lake Worth at the time the assessment was made, and tax deed issued and no change was made then in the lot and block numbers, we cannot see why a competent surveyor would have any trouble or difficulty in locating this particular property, unless there is more than one town or city of Lake Worth in Palm Beach county. See 18 C.J. 180, 181, citing Florida laws.

We may assume therefore that the chancellor must have held that the tax deed of Seemiller was null and void for some other reason than that it was void on its face for indefinite description of property.

In considering the issues in this appeal, it must be noted that section 1020, Comp. Gen. Laws 1927, does not provide that the four years' possession under a tax deed would vest a fee-simple title in the holder, but rather that the four-year actual posession establishes a defense against any suit for a recovery of possession by the former owner or other adverse claimant.

Whether or not the tax deed was held to be void by reason of its being based upon an erroneous assessment or because of a fatal variance between the assessment roll and the tax deed is not argued or insisted upon in briefs before us, and we have not discovered anything in the record that indicates such voidness, even though there are shown some discrepancies. Appellee appears to rely mainly upon the assumption that the tax deed is void upon its face, which is not borne out by the record before us.

Under section 4389, Comp. Ge. Laws 1927 (chapter 5450, Acts of 1903) (Rev. Gen. St. of 1920, section 2721), all tax deeds are declared to be prima facie evidence of the regularity of the proceedings from the valuation of the lands described in such deeds to the date of its issuance, and must so be received in evidence without regard to date of issuance. Cowan v. Skinner, 52 Fla. 486, 42 So. 730, 11 Ann. Cas. 452. Complainant having produced the mesne conveyances under which he holds, which are based upon the tax deed of one of his predecessors in title, the burden shifts to defendant to show by competent evidence that the said tax is void and ineffective to convey title.

At the time this suit was commenced on December 29, 1925, chapter 10223, Acts of 1925, had just gone into effect, section 1 of which aughorizes the bringing of suits in equity to quiet title by any person claiming title to real estate against any person who has or appears to have or claims an adverse interest legal or equitable therein, for the purpose of determining such interest or claim and quieting or removing clouds from the title to such real estate; also provides that the fact that the title has not been litigated at law or that the adverse claim against which the bill is brought is void upon its face, or, though not void upon its face, requires evidence extrinsic of itself to establish its validity, 'shall be no bar to the granting of relief.'

In the case of Florida Finance Co. v. Sheffield, 56 Fla 285, 48 So. 42, 23 L. R. A. (N. S.) 1102, 16 Ann. Cas. 1142, it was held that where the defendant or those under whom he claims goes into actual possession of land purchased under a tax deed regular on its face, though based upon a void assessment, such actual possession for the period of four years prior to the bringing of the action will bar the suit. See, also, Adams v. Fryer, 59 Fla. 112, 52 So. 611. It also seems that while there is a...