Heinberg v. Andress

• Decision Date: 10 March 1950
• Citation: 45 So.2d 488
• Parties: HEINBERG v. ANDRESS.
• Court: Florida Supreme Court

Page 488

45 So.2d 488

HEINBERG v. ANDRESS.

Supreme Court of Florida, en Banc.

March 10, 1950.

Rehearing Denied April 24, 1950.

William R. Davenport, Pensacola, for appellant.

Jones & Latham, Pensacola, for appellee.

THOMAS, Justice.

The appellee prevailed in her suit for ejectment against the appellant, and when judgment was entered and motion for new trial was denied, this appeal followed.

Both appellant and appellee claim title to the property in question by virtue of tax deeds issued to them by the clerk of the Circuit court. The latter had purchased, on July 11, 1939, a tax certificate dated August 5, 1929 and a tax certificate dated August 7, 1933, paying at the time subsequent omitted taxes for the years 1928 to 1939. She then, on December 3, 1941, caused a notice to be published that as the holder of the certificate of 1929 she had applied for a tax deed and that unless the certificate was redeemed, the property would be sold the fifth day of the following month. Eventualy, July 23, 1942, a tax deed issued, conveying to appellee 'Lot 3, west of R. R., less 4 acres, Section 23, township 3 north, range 31 west' although the land was described in the certificate and notice as 'lot 3, less 4 acres west of R. R.' of the same section, township, and range. So it will be noted that the terms 'west of R. R.' and 'less 4 acres' which we have italicized were transposed. Upon request, the clerk of the circuit court executed a corrective deed acknowledged August 9, 1948 and recorded two days later, bearing the date of the original conveyance and giving the description as it originally appeared in the notice and application.

Meanwhile, on May 26, 1948, the appellant purchased a tax certificate of the sale of 1943 for taxes of 1942, and on July 5 of that year the clerk of the circuit court conveyed to him by tax deed land described as 'Lot 3, west of Morgan's Cut Off' of the same section, township, and range, appellant having paid when he purchased the certificate all taxes for the years 1943 to 1947.

We gather from the record, including a stipulation of the parties, that all of Lot 3 lies west of Morgan's Cutoff and that the lot is bisected by a railroad, four acres only lying west of the right of way, so that the property described in appellee's application, notice, and corrective deed is Lot 3 excepting the four acres lying west of the railroad, while the property described in the appellant's notice, application, and deed is all of that lot.

It was also stipulated that on the tax books for the years 1942 and 1943 the owner of the property was shown as 'unknown,' that for the next four years the owner's name was McDavid Veneer Company, and in 1948 the owner was appellant.

The appellant insists that the court erred in holding his tax deed void for failure to mail a notice of his application because, so he claims, 'there was no showing as to any person being entitled to notice' and the evidence established positively that the appellee was not entitled to notice.

Section 194.18, Florida Statutes 1941, and F.S.A., in effect when appellant received his deed, provides that the clerk shall mail a copy of the notice of application for a tax deed to the owner of the property if his name and address 'appear on the tax roll for the year in which taxes were last extended' or if the name and address do not appear there, then to the person last paying taxes as shown by the tax collector's receipt book. As has been seen from our reference to the stipulation, appellee's name did not appear on the tax roll for the years 1942 to 1948. The notice was sent to McDavid Veneer Company, which appeared to be the name of the owner for the years 1944 to 1947. Parenthetically, it was shown that, although this company's address was absent, the notice was mailed to it because the address was known to one of the clerk's assistants. This seems of small importance, however, because from what we can learn from the record, this company never owned the property anyway.

Inasmuch as both the owner's name and address were not present in the rolls, we turn now to the tax collector's receipt book to see who last paid taxes on the property. The transcript shows that the collector received no taxes whatever on the property from 1928 to 1940 and that taxes for the years 1928 to 1947, excepting the year 1941, were paid at the clerk's office. It is a reasonable deduction that the one who paid taxes in 1941 was the one to whom the notice should have been given, and in this year they were paid by J. M. Fleming to the collector on 'Lot 3 W of RR Less 4A.' Here again we confront the discrepancy in the description with which we shall presently deal when we discuss the strength of appellee's title. But despite it, should not one seeking the name of the owner to whom notice should be given be immediately apprised that J. M. Fleming had an interest in Lot 3 which should not be ignored, especially as a tax deed to the whole lot was in contemplation? We think so.

Appellant's position is that the receipt book entry was of little consequence inasmuch as he was interested in all of Lot 3 and the property described in that book was not the same tract. But this is merely a play upon descriptions. Even though the faulty description coincided with the one in appellee's first tax deed, it was sufficient for the purpose of showing who had last paid taxes on Lot 3 or some part of it, hence to bring into effect the statutory requirement. We do not adopt the reasoning of the appellant that because only four acres of Lot 3 actually lay west of the railroad, and Fleming paid taxes on Lot 3, west of the railroad, less four acres, by mere subtraction, Fleming paid on, to quote appellant's brief, 'Four Minus Four' which is 'Nothing.'

We find this position somewhat inconsistent with that subsequently taken by the appellant. Although he had received his tax deed July 5, 1948 based upon tax certificate 503, his counsel, several weeks later, August 23, 1948, had the clerk of the circuit court mail to J. M. Fleming, who, as we have seen, paid the taxes for 1941, as well as to the appellee, a notice of application for tax deed, stating that the property would be sold July 5, 1948, a date then past. As a consequence of this notice, the appellee paid to the clerk a substantial sum of money in exchange for his receipt 'redeeming Tax Certificate No. 503 [on which appellant's deed was based] for 1942 to 47 taxes on land described as Lot 3, West of Morgan's Cut-Off,' which we have already observed is all of Lot 3.

With these complex facts in mind we turn now to the position of the appellant with reference to the effect of Section 194.18, in the light of Section 192.21, Florida Statutes 1941, and F.S.A. He stressed two portions of the latter--that is, the one referring to the correction of an omission by a clerk of the circuit court, and the other providing that no sale for nonpayment of taxes shall be held invalid in the absence of proof that the property was not subject to taxation or that the taxes had been paid prior to sale or the property redeemed before delivery of the tax deed. We shall treat of them in inverse order. These last provisions are identical with those appearing in the law enacted in 1929, Chapter 14572.

The appellee feels that this phase of the present litigation is directly controlled by our decision in the case of Jernigan v. Harrison, 136 Fla. 320, 186 So. 511. There the opinion quoted the statute with reference to the mailing of a notice of application for a tax deed, then Section 4 of Chapter 17457, Laws of Florida, Acts of 1935, F.S.A. § 194.18, and generally discussed the importance in the protection of the rights of the owner of the land of the statutory requirements with reference to advising him that he is about to be deprived of his land because of his delinquency. Although the conclusion was based principally on Section 2 of Chapter 17457, supra, F.S.A. § 194.16, governing the publication of the notice, it is significant that the court did quote, relevant to its comment on the purpose of intelligence to the owner, the law, Section 4, which at that time provided only that the failure of the owner to receive it should not affect the validity of the tax deed.

The law controlling this part of the case--that is, the validity of the appellant's tax deed as distinguished from the validity of the appellee's tax deed, which we...