Douglass v. Tax Equities, Inc.

• Decision Date: 05 November 1940
• Parties: DOUGLASS et al. v. TAX EQUITIES, Inc.
• Court: Florida Supreme Court

198 So. 578

144 Fla. 801

DOUGLASS et al. v. TAX EQUITIES, Inc.

Florida Supreme Court

November 5, 1940

En Banc.

On petition for rehearing.

Petition denied.

For former opinion, see 198 So. 5.

CHAPMAN J., dissenting. Appeal from Circuit Court, Orange County; Frank A. Smith, judge.

COUNSEL

Edward K. Goethe, of Orlando, for appellants.

George B. Carter, of Orlando, for appellee.

OPINION

On Petition for Rehearing.

BROWN Justice.

In the petition for rehearing appellee says that the court in its opinion overlooked the fact that there had never been any attempt to treat as a lien the tax title acquired by Alexander Harrop who conveyed his title thereto to the First National Bank of East Liverpool, Ohio, and that said bank was made a party defendant in the first foreclosure suit, in which service on Mrs. Douglass was defective, and that it was alleged in the first suit, and in the re-foreclosure suit that the bank had title to the property; that Mrs. Douglass' answer admitted the issuance of the tax deed to Harrop but made no allegation that the tax deed was invalid.

As pointed out in our previous opinion, the answer alleged that Mrs. Douglass had been the equitable owner of the property since July 16, 1925, at which time she secured a deed to the property, paid the purchase price thereof and went into possession, and that she is still the equitable owner thereof in spite of the fact that the conveyance to her by the foreign corporation did not have the seal of the corporation affixed thereto. The answer further denied that the tax deed acquired by Alexander Harrop terminated the title of John W Douglass and Gertrude All Douglass.

So we have in the bill an allegation to the effect that the tax deed issued to Alexander Harrop terminated or took away any title or interest which these appellants had in the property and the allegation in the answer that the said tax deed did not have the effect of terminating the title of these appellants, which amounts to a denial of the allegation in the bill.

Prior to the enactment of the Chancery Act in 1931, Acts 1931, c. 14658, where plaintiff set the cause down for hearing on bill and answer before filing a replication, and consequently before the cause was at issue, plaintiff was held to have admitted the truth of all averments of the answer. Goodyear Tire Co. v. Daniel, 72 Fla. 489, 73 So. 592; Seaboard Oil Co. v. Donovan, 99 Fla. 1296, 128 So. 821. The admission applied to all pertinent averments of the answer, Saussey v. Liggett, 75 Fla. 412, 78 So. 334; Smith v. Miami, 79 Fla. 509, 84 So. 379, whether the averments were responsive to the bill or in confession and avoidance of it, Maxwell v. Jacksonville Loan Co., 45 Fla. 425, 34 So. 255; Whittaker v. Eddy, 109 Fla. 535, 147 So. 868, and whether the answer was sworn to or not. Whittaker v. Eddy, 109 Fla. 535, 147 So. 868. All allegations of the bill not sufficiently denied are taken as true. The enactment of section 37 of the 1931 Chancery Act, Section 4902(18), C.G.L.Perm.Supp., dispensing with general replications, did not change these general rules as to hearing on bill and answer. This was our holding with reference to section 4907, C.G.L., which was derived from Sec. 2, Chapter 6907, of Acts of 1915. See Seaboard Oil Co. v. Donovan, 99 Fla. 1296, 128 So. 821. Within ten days after filing of answer, the plaintiff may move for decree on bill and answer, section 40 of 1931 Chancery Act, being Sec. 4902(21), C.G.L.Perm.Supp.

Under these rules, we are impelled to adhere to our previous opinion, especially when construed in...