Hollywood, Inc. v. Clark

• Decision Date: 24 September 1943
• Citation: 153 Fla. 501,15 So.2d 175
• Parties: HOLLYWOOD, Inc., v. CLARK et ux.
• Court: Florida Supreme Court

15 So.2d 175

153 Fla. 501

HOLLYWOOD, Inc., v. CLARK et ux.

Florida Supreme Court

September 24, 1943

[Copyrighted Material Omitted]

Appeal from Circuit Court, Broward County; George W. Tedder judge.

T. D. Ellis, Jr., and Stanley M. Beckerman, both of Hollywood, for appellant.

Miller & Fitzsimmons, of Fort Lauderdale, for appellees.

BROWN, Justice.

This is an appeal from an order granting appellees' petition for a rehearing and modifying the chancellor's former decree which was in favor of the appellant and quieted appellant's title in and to a certain lot in Hollywood, Florida. This decree in favor of the appellant, plaintiff in the court below, was by such order on rehearing modified so as to require the plaintiff to reimburse the defendants, appellees here, for the amounts paid out by them in taxes over a period of years, during which period defendants considered that they held a good title to the property under an unrecorded warranty deed executed by the Home Seekers Realty Company. In other respects the former decree was left undisturbed. The plaintiff's appeal was limited to the said order granting a rehearing and modifying the final decree as above stated. Appellees, defendants in the court below, in whose interest the modification of the former decree was made, took no appeal therefrom, but on the appeal to this court taken by Hollywood, Inc., they have filed cross assignments of error attacking the original final decree on its merits, that is, upon various grounds based mainly upon the defenses set up in defendant's several answers and the evidence proferred in support thereof, which answers appellees contend were erroneously dismissed and the evidence proferred in support thereof erroneously excluded.

The factual background of this case is briefly as follows: In February, 1924, appellees, Andrew Clark and Hilma Clark, his wife, who were nonresidents of the State of Florida, entered into a contract with the Home Seekers Realty Company, a Florida corporation, to purchase a lot in the 'Hollywood Beach First Addition,' situated in Broward County, Florida, the consideration being $3,025, which they paid in due course and the corporation executed and delivered to them its warranty deed on July 17, 1925. They never recorded the deed until some years after the appellant, Hollywood, Inc., acquired a deed to the property under the following circumstances. The Highway Construction Company of Ohio, Inc., secured a judgment against said Home Seekers Realty Company in April, 1929, in a large amount; execution thereon was issued in May of the same year and levied by the sheriff on some hundreds of lots in Hollywood, including the vacant lot in question, all of which were bought in by the Highway Construction Company at execution sale, and sheriff's deed was executed to said purchaser and recorded on December 1, 1930. In February of 1931, the Highway Construction Company, for a valuable consideration, conveyed the property to the appellant, Hollywood, Inc., and said deed was recorded three days later. The appellees did not record their deed until November 7, 1939; so their deed was withheld from the public records for a period of some fourteen years and three months. This suit was filed by the appellant, Hoolywood, Inc., in April of 1941 to quiet its title against the cloud cast thereupon by the recording of the old deed from the Home Seekers Realty Company to appellees. The defendants filed a motion to dismiss the bill which was denied and thereafter filed an answer and two amended answers, all of which the court held to be insufficient and ordered that the bill be taken as confessed by the defendants. Testimony and exhibits were adduced before the court and the final decree granting the prayer of plaintiff's bill was rendered on February 2, 1942. Defendants' petition for rehearing was filed February 21, 1942 and the order granting a rehearing and modifying the said final decree was entered on June 26, 1942.

In this order the chancellor stated that he had heard oral arguments upon the said petition for rehearing and had requested briefs upon one question presented by counsel. The court also stated in its order that, with one exception, the petition presented no questions which had not been considered by the court on final hearing, and that the exception referred to was a contention of counsel for the defendants, not made on the original hearing, that plaintiffs should be required to pay to the defendants the taxes which they had paid over a period of years on the land in controversy. The chancellor also stated that no Florida case on this point has been cited by counsel and he had found none; that the decisions of courts in other jurisdictions were in conflict, the weight of authority perhaps being against defendants' contention. Then the chancellor in his order stated, 'I have given some time and study to this question and I am inclined to join the minority group. If, as plaintiff contends, and this contention was upheld by this court, it was the owner in fee simple of the land, the duty rested upon it, when due, to pay the taxes. Not having done so, it would seem to be equitable to require this to be done. Defendants lived in a distant state. They had relied upon an unrecorded deed and in good faith had paid the taxes on land which they thought they owned. Under these circumstances they should be reimbursed for the taxes paid by them.' Then follows the order of the court granting the petition for rehearing and on said rehearing, ordering, adjudging and decreeing 'that the final decree entered February 2, 1942, be modified so as to require plaintiff to pay to defendants all taxes paid by them on the land involved, together with the interest at 6 per cent on each payment from the date thereof.'

While the answers of the defendants, which attempted to set up several defenses, were all held insufficient by the trial court, they did allege that the defendants had paid the taxes on said land and contained a prayer for general relief, and the defendants also proferred in evidence tax receipts showing that they had paid state, county and city taxes for the years 1924 to 1939, inclusive, and proved by cross-examination of plaintiff's witnesses that plaintiff had never paid any taxes on said land. This prayer for reimbursement for taxes paid was made one of the grounds of the petition for rehearing. Plaintiff below made no attempt to show that these defendants had not paid such taxes, and on its appeal here the error complained of is, not that defendants had not paid the taxes, but that, as a matter of law, the chancellor was in error in requiring appellant to reimburse appellees for the taxes so paid.

Before discussing the merits of this appeal, there are some questions of appellate jurisdiction and procedure which, in view of comparatively recent changes in our statutes and court rules, call for careful consideration in order to save trouble to the bench and bar in future cases.

The original final decree was rendered and entered on February 2, 1942, and the order or decree on rehearing 'modifying' the former decree by adding a new provision thereto was rendered and recorded on June 26th, 1942. Regardless of whether or not this last order be deemed a second or a final decree or a supplemental order or decree from which an appeal could be taken, and regardless of whether or not the decree of February 2, 1942, as amended on June 26, 1942, might be considered as having been brought forward by the amendatory order and combined with the latter order into one final decree, so that the date of the rendition and entry of the complete final decree would thereby be established as of June 26, 1942, the date of the last order, the fact remains that the defendants, appellees here, took no appeal or cross appeal during the sixty-day periods following February 2, 1942, or June 26, 1942, nor did they file any assignments or cross-assignments of error during such periods. But the plaintiff below did appeal within the sixty-day period required by Section 67.03, F.S. 1941, F.S.A., from the order of June 26th on rehearing adding to the first decree the provision above referred to, which appellant contends is the only action of the chancellor which has been brought to this court for appellate review. Appellant did not appeal from the original decree, which was entirely in its favor, but took its appeal solely from the order of June 26, 1942, and duly filed its assignments of error and directions to the clerk on August 22, 1942. Appellees filed their cross-assignments of error, attacking only the original decree of February 2, 1942, and also additional directions to the clerk, on August 31, 1942, at which time the period for taking an appeal or cross appeal from either the decree of February 2, 1942, or that of June 26, 1942, had expired. Appellant filed its objections to said cross assignments and additional directions is the court below, but the chancellor declined to rule thereon, stating that the question presented required an interpretation of the new Supreme Court rules which he thought should more appropriately be interpreted by the Supreme Court, which Court could also take care of the matter of the additional cost of the transcript resulting from appellees' additional directions.

In the light of these facts, appellant presents the question as to whether or not the defendants in the court below, appellees here, can achieve a direct appeal from the original final decree of February 2, 1942, or achieve a cross appeal therefrom, by merely filing cross assignments of error in plaintiff's appeal from the order of June 26, 1942.

That inquiry suggests a preliminary question: Was the order of June 26 1942, an appealable order? Leaving aside...