Goodwin v. Schmidt

• Decision Date: 16 December 1941
• Citation: 149 Fla. 85,5 So.2d 64
• Parties: GOODWIN v. SCHMIDT et al.
• Court: Florida Supreme Court

5 So.2d 64

149 Fla. 85

GOODWIN v. SCHMIDT et al.

Florida Supreme Court

December 16, 1941

Appeal from Circuit Court, Dade County; Worth W. Trammell judge.

Horton &amp Strahan, of Miami, for appellant.

Kurtz, Reed Sappenfield & Cooper, of Miami, for appellees.

BUFORD, Justice.

On July 17, 1940 appellant Goodwin exhibited his bill of complaint in the Circuit Court in and for Dade County, Florida, seeking to enforce a lien under the doctrine of subrogation against lot 6, Block 24 of Normandy Beach, second amended, according to a plat thereof recorded in Plat Book 16 on page 44 of the Public Records of Dade County, Florida.

The bill in effect alleged that appellant on December 22, 1937, surrendered to E. B. Leatherman, Clerk of the Circuit Court of Dade County, tax sale certificates Nos. 1343 and 1029-D assigned by the Town of North Miami and the tax sale certificates numbered 887, 926 [149 Fla. 88] and 972-C assigned by the Town of Miami Shores to appellant and requested the said Leatherman to issue the appellant a tax deed for the property described in the certificates in pursuance to law in the State of Florida in such case made and provided; that Leatherman as Clerk of the Circuit Court, as a prerequisite to the issuance of the tax deed to appellant, required appellant to pay or redeem all oustanding subsequent and omitted taxes before such tax deed should be issued; that in compliance with the requirements of the statute in the regard and of the said Leatherman as Clerk, appellant did pay or cause to be paid or redeemed,

'Baker's Haulover Taxes for the years 1929 to 1932 inclusive, in the sum of $3.35, original receipt of said sum being hereto attached and marked plaintiff's 'Exhibit A', Baker's Haulover Taxes for the years 1932 to 1935 inclusive, in the sum of $3.08 the original receipt showing payment of same being hereto attached and marked plaintiff's 'Exhibit B' Baker's Haulover District Taxes for the year 1936, in the sum of $1.47, the original receipt showing payment of same being hereto attached and marked plaintiff's 'Exhibit C'; that your Orator likewise paid or redeemed all State and County Taxes for the years 1929 through 1935 inclusive, in the sum of $136.36, the original receipt of same being hereto attached and marked plaintiff's 'Exhibit D'; that your Orator paid or redeemed Okeechobee Flood Control District Taxes for the year 1929 to 1931 inclusive, in the sum of $2,76, the original receipt showing payment of same being hereto attached and marked plaintiff's 'Exhibit E'; that your Orator paid or redeemed State and County taxes for the years 1936 and 1937 in the sum of $33.44, as evidenced by the original receipt showing payment of same being hereto attached and marked plaintiff's 'Exhibit F'.

'That all the sums hereinabove set out in this paragraph of this Bill of Complaint were paid by your Orator by virtue of the Laws of the State of Florida in reference to the issuance of tax deeds and as a prerequisite to the issuance of said Tax Deed by E. B. Leatherman, Clerk of the Circuit Court in and for Dade County, Florida; that said payment of taxes was not voluntary payment, but was made solely for the purpose of securing issuance of the Tax Deed upon said property by E. B. Leatherman, Clerk of the Circuit Court of Dade County, Florida.'

It is further alleged that prior to the date on which the tax deed was to issue to appellant, under his application, supra, Leatherman, as Clerk, advised appellant that the tax sale certificates hereinabove referred to were ovid and that he had no authority under law to issue such tax deed based on said certificates and that he based his conclusion in this regard upon the decision of the Supreme Court of the United States.

We may assume that Leatherman had reference to the case of Ocean Beach Heights, Inc., v. Brown-Cummer Investment Co., 302 U.S. 614, 58 S.Ct. 385, 82 L.Ed. 478.

It is alleged that by reason of the failure of the Clerk to issue the tax deed, appellant was denied the right to have such tax deed issued but, he avers, that he is nevertheless in position of having paid or redeemed all valid subsequent and omitted taxes assessed against said property. He avers that by reason of such facts he is entitled to and should be subrogated to the rights of the State of Florida and to the rights of Baker's HaulOver District and the Okeechobee Flood Control District for such taxes as had been paid by appellant as alleged and that by reason of such subrogation, appellant claims a first lien upon the property described.

He then makes allegations as to the interest held by the defendants in the lands to show that they are proper parties defendant to the suit. He prays for an adjudication of a lien in his favor for the amount of the taxes so alleged to have been paid to Leatherman as Clerk under the doctrine of legal subrogation.

Subrogation is either legal, that is, the right arising by operation of law, or else it is conventional, in which case the right arises by reason of contract between the parties.

In Boley v. Daniel, 72 Fla. 121, 72 So. 644, 645, L.R.A. 1917A, 734, we held:

'Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right.

'Subrogation arises by operation of law, where one having a liability or a right or a fiduciary relation in the premises, pays a debt due by another under such circumstances that he is, in equity, entitled to the security or obligation held by the creditor whom he has paid. This is called 'legal subrogation.'

'Conventional subrogation depends upon a lawful contract, and occurs where one having no interest in or relation to the matter pays the debt of another, and by agreement is entitled to the securities and rights of the creditor so paid.'

See Sheldon on Subrogation ##2, 140; Rice v. Winters, 45 Neb. 517, 63 N.W. 830; Watson v. Wilcox, 39 Wis. 643, 20 Am.Rep. 63; Home Savings Bank v. Bierstadt, 168 Ill. 618, 48 N.E. 161, 61 Am.St.Rep. 146. See, also, Dodge v. Kistler, 140 Fla. 209, 191 So. 301.

Unless appellant alleged sufficient facts in his bill of complaint to warrant the adjudication of a lien in his favor under the doctrine of legal subrogation, he did not plead a cause of action.

Whether or not the doctrine of subrogation applies in this case depends upon whether or not the payment of the items of taxes due to the State of Florida, the County of Dade, Baker's HaulOver Drainage District and Okeechobee Flood Control District as alleged in the bill of complaint constituted a voluntary payment of taxes of another which the appellant was under no obligation to pay, or constituted an involuntary payment because of the requirement of law or some legal duty to pay the same.

The bill of complaint does not allege when the appellant procured by assignment the tax sale certificates issued by Town of Miami Shores and by the Town of North Miami on which he sought issuance of tax deed. The bill does show, however, that the application for tax deed was made to the Clerk of the Circuit Court on the 22nd day of December, 1937.

In the case of Mahood et al. v. State ex rel. Davis et al., 101 Fla. 1254, 133 So. 90, 92, in opinion and judgment filed March 24, 1931, it was held:

'It is admitted that Miami Shores was a hamlet or village and if the allegation of the information that that hamlet, or village, was located entirely west of Biscayne Bay then there was no authority in law for the inclusion of the territory east of Biscayne Bay within the corporate limits of the town of Miami Shores.'

And in the case of Leatherman, Clerk, et al. v. Alta Cliff Co., et al., 114 Fla. 305, 153 So. 845, 846, opinion and judgment in which was filed March 21, 1934, we said:

'The lands upon which these certificates were issued were located in that area of the original proposed town of Miami Shores lying east of an imaginary line running northeasterly and southwesterly about the middle of Biscayne Bay and constituted a part of the lands involved in the case of Mahood v. State ex rel. Davis et al., 101 Fla. 1254, 133 So. 90, 92. In that case we held:' (Then was quoted the paragraph above quoted).

Then we said:

'Our mandate reversing the cause was issued pursuant to the opinion and judgment being filed on March 24, 1931. After the going down of the mandate, the circuit court entered an order wherein and whereby the city officers and the town of North Miami, formerly known as the town of Miami Shores, were each and all ousted, excluded, and prohibited from exercising municipal functions over the territory in which the lands here involved are embraced.

'The ouster of jurisdiction was necessarily based upon the finding and adjudication that there had never been any authority in law for the inclusion of the territory east of Biscayne Bay within the corporate limits of the town of Miami Shores, and, if there had never been any lawful authority for the inclusion of that territory within the municipality, then the municipality never acquired any de facto or de jure jurisdiction over the lands embraced in that territory.'

And further in that opinion said:

'The judgment in the case of Mahood v. State ex rel Davis, supra, was pleaded in this case, and therefore the circuit court, as well as this court, was, and is, authorized to take judicial cognizance of the record and judgment in that case.

'Looking to the record in the case of Mahood v. State ex rel. Davis, supra we find that the state has, through its proper officer and by proper procedure, successfully contested the right of the municipality there and here involved to exercise any municipal functions or franchises over that territory sought to be included within the territorial jurisdiction of the municipality and...