Graham v. Florida Land & Mortg. Co.

• Decision Date: 30 January 1894
• Citation: 33 Fla. 356,14 So. 796
• Court: Florida Supreme Court
• Parties: GRAHAM et al. v. FLORIDA LAND & MORTG. CO., Limited.

14 So. 796

33 Fla. 356

GRAHAM et al. v. FLORIDA LAND & MORTG. CO., Limited.

Florida Supreme Court

January 30, 1894

Appeal from circuit court, Hamilton county; John F. White, Judge.

Action by the Florida Land & Mortgage Company, Limited, against Henry F. Graham and others to quiet title by the cancellation of certain deeds. There was decree for complainant, and defendants appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. In order to maintain a bill to remove a cloud from the title to real estate, the general rule is that, where the complainant has a legal title, he must be in possession. The basis for such relief in equity is the want of, or inadequacy of, a legal remedy in cases where a deed or other instrument of writing exists which may be vexatiously or injuriously used against a party after the evidence to impeach or invalidate it is lost, or which may cast a cloud or suspicion over his title, and he cannot immediately protect his right by any course of proceeding at law. In the application of this rule courts of equity have, independent of statutory authority held that, where a complainant has the legal title to lands that are wild, unimproved, and unoccupied, he may invoke the aid of chancery to remove a cloud upon his title, although he has no other than constructive possession resulting from legal ownership.

2. Where a bill is filed to remove a cloud from the title to wild and unimproved land, it is essential that it should be alleged in the bill, and proved, that the lands are wild and unimproved.

3. The record of a tax deed, under chapter 3413, Laws 1883, which makes the tax deed prima facie evidence of the regularity of the proceedings, from the valuation of the land by the assessor to the date of the deed, inclusive, and bars suits by the former owner to set aside a tax deed made in pursuance of any sale of lands for taxes, unless commenced within three years after the record of such deed in the county where the lands lie, does not, of itself, vest such possession of the lands in the grantees in such deeds as to authorize the former owner to sue for their recovery at law, and to defeat his remedy in equity to remove the tax deed as a cloud, when such is the case.

4. The purpose of the 26th section of chapter 3413, Laws 1883 providing that if any assessor, when making his assessment shall discover that any land in his county was omitted in the assessment roll of either or all of the three previous years, and was then liable to taxation, he shall, in addition to the assessment of such land for that year, assess the same separately for such year or years that it may have been so omitted, at the just value thereof in such year, noting distinctly the year when such omission occurred, was to impose upon the lands subject to taxation, and omitted from the tax roll of any or all of the three years past at the time of any annual assessment, their just proportion of the burdens of government, by being taxed at the just value thereof in the year or years they were omitted from the roll, and the taxes properly chargeable thereon were not paid.

5. In 1883, a large body of lands were assessed to the then owner by descriptions properly identifying them, but no valuations were placed opposite the several descriptions of the lands, and no amounts of taxes for state and the various county purposes were set down in separate columns opposite such descriptions. The total number of acres assessed, together with the aggregate valuation of the same, and also the aggregate amounts of taxes due thereon for state and the various county purposes, were set out in the assessment roll. The collector of revenue advertised the lands for sale in the year 1884 for the nonpayment of the taxes so assessed in the year 1883, and a portion of them were sold for the entire amount of taxes so assessed against them. The purchasers at this tax sale paid the amount of the taxes for which said lands were sold to the collector, who accounted to the comptroller for the amount of the state taxes collected, which went into the state treasury, and was retained. The same lands were again assessed in 1885 for the years 1883, 1884, and 1885, and sold by the collector of revenue in 1886 to the state for the entire amount of taxes assessed for the three years mentioned. Held that, by the receipt by the proper officials, under the sale of 1884, of the entire amount of taxes assessed against the lands for the year 1883, the taxes chargeable to the lands for that year were satisfied and discharged, and the state had no authority, under section 26, c. 3413, to again assess said lands in 1885 for the taxes so satisfied and discharged. Held, further, that the sale in 1886 for the entire taxes assessed for the years 1883, 1884, and 1885 was void, for the reason that the part of the taxes assessed for the year 1883 was illegal.

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

7. Under chapter 3685, Laws 1887, the comptroller was authorized to refund amounts received for state taxes only when the lands at the time of assessment were not subject to taxation, or the taxes on them had been paid at the time of sale.

8. As a general rule, a party will not be permitted to assume inconsistent positions in legal proceedings, and when he has successfully made an allegation in pleading in reference to a fact, he will be estopped to deny the truth of such allegation in a subsequent action between the same parties, involving the same transaction; but, before such allegations will have the effect of an estoppel, they must be clearly inconsistent with each other.

9. At common law, a purchaser at a tax sale buys subject to the rule caveat emptor, and gets nothing unless he secures the land itself. The requirement that the landowner, upon recovering the land, shall refund the taxes that have been paid on the land by the tax claimant, prior to the adoption of the constitution of 1885, depended upon statutory regulation.

10. The setting aside of orders made by the clerk at rules dismissing bills for want of replication, and the extension by the court of time for taking testimony allowed by the rules of practice, are matters in the discretion of the court, when exercised within the limits of the rules prescribed; and, in the absence of showing that such discretion has been abused, the appellate court will not interfere with the action of the court in such matters.

11. Where the testimony submitted to a chancellor is not sufficient on some points to authorize a just decree in the cause, and it clearly appears from the record that testimony does exist on such point sufficient to enable the court to make a just decree, the cause will be remanded, with directions to take further testimony on such point.

COUNSEL

C. P. & J. C. Cooper, for appellants.

W. B. Young, for appellee.

OPINION

MABRY J.

The Florida Land & Mortgage Company, Limited, filed a bill to have a certain tax deed obtained by Henry F. Graham and Lester Hubbell, and certain conveyances executed by them and their grantees, canceled and removed, on the ground that they constituted a cloud upon the title to alleged real estate of the company, situated in Hamilton county, Fla. On final hearing, the chancellor decreed that said tax deed and conveyances thereunder were void, and that they be canceled upon the payment by the complainant company of certain sums of money on account of taxes paid on the lands in question by the defendants since the issuance of the tax deed declared void. From this decree the defendants appealed, and the first question which they present for our consideration calls in question the jurisdiction of the circuit court to entertain the suit. It is contended that the Florida Land & Mortgage Company, when it filed its bill, was not in possession of the lands therein described, and, as a consequence, could not maintain a bill to remove a cloud upon the title to the same. The lands in question embrace a large body, consisting of some 70,000 acres.

The bill alleges that these lands were granted by the state of Florida in February, 1883, to Sir Edward J. Reed, and by him afterwards conveyed to the Florida Land & Mortgage Company, Limited; the deed from the state to Sir Edward J. Reed, and from him to the Florida Land & Mortgage Company, being duly recorded in Hamilton county. It is further alleged that all of the said lands were unimproved and unoccupied, and that the defendants, holders of conveyances under the tax sale alleged to be void, reside beyond the limits of the state of Florida.

The answers admit the conveyance to Sir Edward J. Reed, but it is alleged to have been made by the trustees of the internal improvement fund of the state of Florida, and not by the state. The conveyance from Reed to the company is also admitted, but this is coupled with a denial that the company, at the time of filing the bill, was the owner of the lands; it being alleged that certain named defendants were the owners, deriving title under the tax sale alleged to be void.

As to the character and occupancy of the lands, the defendants answer as follows: 'Defendants say they have no personal knowledge whether said lands are unimproved and unoccupied lands; therefore, neither admit nor deny same of their own knowledge, but demand strict proof of the same. Defendants say that they are informed and believe, and so state on such information and belief, that some small portion of said lands are occupied by persons other than complainant or its members, officers, or agents.'

The tax assessor of Hamilton county for the years 1885 and 1886 testified that he did not know condition of lands in 1883 and 1884, but in 1885 said...