Florida East Coast Fruit Land Co. v. Mitchell

• Decision Date: 13 July 1920
• Citation: 80 Fla. 291,85 So. 661
• Parties: FLORIDA EAST COAST FRUIT LAND CO. v. MITCHELL, Clerk of Circuit Court, et al.
• Court: Florida Supreme Court

85 So. 661

80 Fla. 291

FLORIDA EAST COAST FRUIT LAND CO. v. MITCHELL, Clerk of Circuit Court, et al.

Florida Supreme Court

July 13, 1920

Appeal from Circuit Court, Brevard County; James W. Perkins, Judge.

Suit by the Florida East Coast Fruit Land Company against J. F Mitchell, as Clerk of the Circuit Court of Brevard County and another, to cancel a tax certificate and for an injunction. Demurrer to bill sustained, bill dismissed, and complainant appeals. Reversed.

Syllabus by the Court

SYLLABUS

A valid assessment of lands is an essential foundation to proceedings to subject them to sale for nonpayment of taxes.

A description of land in the assessment roll, so faulty as not to warn the owner of the charge upon his land or to advise possible purchasers what land is to be sold, will invalidate the assessment.

Where a sale is for an entire tax, and a part of it is legal and part illegal, the illegal portion vitiates the entire sale.

Where several tracts or parcels of land are assessed and sold for taxes, and the amount of taxes assessed upon each of said tracts is not set down or given opposite thereto respecitively, in the assessment roll and in the collector's advertisement of sale, but the aggregate taxes assessed on all the different tracts is given only, a tax deed predicated thereon is void.

If a statutory provision on the subject of redemption of lands sold for taxes is not a complete and certain one that applies in all situations, as where it depends on the discretion of the comptroller, whose discretion cannot be controlled by mandamus, it is not such an adequate remedy as will prevent a court of equity from granting relief. Whitfield and West JJ., dissenting.

COUNSEL Nathan P. Bryan, of Jacksonville, for appellant.

Landis, Fish & Hull, of De Land, for appellees.

OPINION

BROWNE C.J.

This is a proceeding by the Florida East Coast Fruit Land Company to have a tax sale certificate canceled and to obtain appropriate ancillary relief by injunction. A demurrer to the bill was sustained, the bill dismissed, and complainant appealed.

The bill alleges, among other things, that the Florida East Coast Fruit Land Company 'was the owner and in possession of section 40, in township 20, south of range 34 east, containing 413.52 acres according to the government survey, and of section 41, township 20, south of range 35 east, containing 285 acres according to the government survey; that all the lands are situated in Brevard county; that the clerk had published notice of application by the defendant Foster for tax deed to property described as follows: 'South half of Wm. Garvin grant, sections 37, 40 and 41, township 20 south, ranges 34 and 35 east, 1,000 acres”--and that Foster, one of the appellees, had made application for a deed to the land described in the notice, and that unless the clerk was restrained he would issue a deed to Foster.

It is urged, in objection to the assessment:

'That the lands were not assessed according to the government survey; that more than one section was included in one assessment; that lands lying in two ranges were assessed together; that the two ranges had been surveyed and platted by the United States government prior to the assessment; that there is a section 37 and a section 40 and a section 41 in each of the townships included within 'township 20, range 34 and 35' and that the aggregate acreage of these sections is nearly 7,000 acres; that section 41 in range 34 contains nearly 4,300 acres, and that the assessment is inconsistent with the government survey; that the 1,000-acre assessment is neither the half nor the whole of the lands attempted to be described; that the description is not by metes and bounds, nor made in accordance with a private survey or description recorded in the office of the clerk or by reference to any deed; that the Wm. Garvin grant is rectangular in shape, and does not lie north and south, nor east and west; that sections 37 and 40, range 34, are not owned by the same person; and that sections 37 and 41, range 35, are not owned by the same person.'

The demurrer admits the truth of these allegations.

We think the assessment is vague, uncertain and indefinite, and not made in accordance with law, and is not a valid one of the lands of the complainant, which is an essential foundation to proceedings to subject them to sale for nonpayment of taxes. McKeown v. Collins, 38 Fla. 276, 21 So. 103.

This court has held that--

'A description of lands on the assessment roll, so faulty as not to warn the owner of the charge upon his land, or to advise possible purchasers what land is to be sold, will invalidate the assessment.' Miller v. Lindstrom, 45 Fla. 473, 33 So. 521, headnote 1.

Also:

'A description of lands on an assessment roll so faulty as not to enable the purchaser to identify the land thereby, is an invalid assessment.' Grissom v. Furman, 22 Fla. 581.

'Where a sale is for an entire tax, and a part of it is legal and part illegal, the illegal portion vitiates the entire sale.' Graham v. Florida Land & Mortg. Co., 33 Fla. 356, 14 So. 796, headnote 6.

'Where several tracts or parcels of land are assessed and sold for taxes, and the amount of taxes assessed upon each of said tracts is not set down or given opposite thereto, respectively, in the assessment roll in the collector's advertisement of sale, but the aggregated taxes assessed on all the different tracts is given only, a tax deed predicated thereon is void.' Levy v. Ladd, 35 Fla. 391, 17 So. 635, headnote 4.

We do not think any of the statutory remedies are adequate to protect the complainant in this case. There was an application for a tax deed, which the applicant would in all probability have obtained before the complainant could avail himself of any remedy at law, and thus the object sought to be accomplished by the complainant in his bill to restrain the clerk of the circuit court from issuing the deed to Foster would have been accomplished.

The land assessed as 'Unknown' was described as 'S. 1/2 of Wm. Garvin grant, sections 37, 40 and 41, township 20 south, ranges 34 and 35 east, 1,000 acres.'

The complainant owned about 698 acres, and some other person owned the remainder, amounting to about 300 acres.

The Wm. Garvin grant is rectangular in shape, and does not lie north and south, nor east and west; and such a description is vague and incapable of determination.

Sections 37 and 40, range 34, are not owned by the same person, and sections 37 and 41, range 35, are not owned by the same person. The vagueness, uncertainty, and inadequacy of the description of the land as the south 1/2 of the Wm. Grant tract is rendered more uncertain by this attempt at further particular description.

We do not think that under the facts in this case the complainant has an adequate statutory remedy under section 570, General Statutes 1906, because there seems to be no prescribed method by which it can be determined what proportion of the taxes assessed against the entire body of land should be paid by the complainant.

Much confusion and injustice can readily result from assessing lands belonging to several persons, in the name of one, or as 'Unknown,' if in order to prevent the loss of his property by sale for taxes he should be required to pay a pro rata of the tax based upon the quantity of the land rather than on its value.

Thus if two lots of the same size, belonging to different persons one with improvements worth $5,000, and the other with improvements worth $50,000, were assessed as 'Unknown' at a valuation for both lots of $75,000, should be sold for taxes, a pro rata of the tax...