Horne v. City of Ocala

• Decision Date: 21 May 1940
• Citation: 196 So. 441,143 Fla. 108
• Parties: HORNE et al. v. CITY OF OCALA.
• Court: Florida Supreme Court

196 So. 441

143 Fla. 108

HORNE et al. v. CITY OF OCALA.

Florida Supreme Court

May 21, 1940

En Banc.

Proceeding by the City of Ocala, Fla., against W. N. Horne for possession of realty purchased by the City of Ocala, Fla., at a foreclosure sale of municipal taxes and paving assessments in which writ of assistance was contested by W. N. Horne and his tenants. From an adverse decree, W. N. Horne and his tenants appeal.

Decree affirmed.

BROWN and CHAPMAN, JJ., dissenting. Appeal from Circuit Court, Marion County; J. C. B. Koonce, judge.

COUNSEL

H. M Hampton, of Ocala, for appellants.

W Robert Smith and John Marshall Green, both of Ocala, for defendant in error.

OPINION

WHITFIELD Justice.

The facts are fully stated in the opinion prepared by Mr. Justice BROWN.

Taxes are levied not by contract but 'in pursuance of law'. Sec. 3, Art. IX, Fla. constitution.

Valid ad valorem tax liens upon described lands may be enforced by statutory proceedings in rem brought by a governmental taxing unit in which the lands are located against the described lands as defendant without making the owner of the land a party defendant in the suit, Chapter 15038, Acts of 1931; and due process of law may be afforded by giving the owner of the lands fair, adequate and timely notice of the contemplated or pending in rem proceedings as may be prescribed by statute. See 1 C.J.S., Actions, § 52, p. 1148 and authorities cited; Mills v. Tukey, 22 Cal. 373, 83 Am.Dec. 74.

In this case the statutory notice by registered letter and publication describing the lands was given to the owner who did not appear in the in rem proceedings which by due course resulted in a judgment and a judicial sale and conveyance to a third party purchaser who sought writ of assistance to obtain possession of the lands. The former owner of the lands for himself and his tenants contested the writ of assistance on grounds challenging the validity of the in rem proceedings under which the title to the lands was conveyed to another person by due course of law.

As the in rem proceedings were valid, they are binding on the former owner and his tenants though he did not appear in the proceedings after the statutory notice was given; and as such former owner is bound by the in rem judgment and the sale and conveyance of the lands, he has no right to contest the execution of the writ of assistance which was issued under the general provision of the statute that 'the practice, pleading and procedure in any such suit shall be in substantial accordance with the practice, pleading and procedure for the foreclosure of mortgages of real estate.' See Chap. 15038, Acts of 1931; sec. 69, Chap. 14658, Acts of 1931; 4 Am.Juris. p. 443; 7 C.J.S., Writ of Assistance, § 9, p. 8; State ex rel. Biddle v. Superior Court, 63 Wash. 312, 115 P. 307, Ann.Cas. 1913D, 1119, 1120.

Affirmed.

TERRELL, C.J., and BUFORD and THOMAS, JJ., concur.

BROWN and CHAPMAN, JJ., dissent.

DISSENTING

BROWN Justice (dissenting).

This is an appeal from a decree of the Circuit Court granting writ of assistance to put the City of Ocala, Florida, in possession of certain lands purchased by the City at a foreclosure sale of municipal taxes and paving assessments, which foreclosure was instituted by the City of Ocala against 'Certain Lands Upon Which City of Ocala, Florida, taxes and/or Paving Assessments are Delinquent,' under Chapter 15038, Acts of 1931. Six tracts of land were described in the bill, but none of the various owners were named in the bill or made parties defendant. One of the tracts on which it was claimed paving liens were delinquent as owned by the appellant, who had it leased and in the actual occupancy of the two other appellants, Blackburn and Green. The foreclosure proceeded to sale and confirmation thereof, in strict conformity with the statute, and being the highest and best bidder, the property was sold to the City.

On the 23d day of November, 1938, prior to the filing of the bill in January following, the City Attorney, in compliance with the statute, sent to dertain persons, among whom was the appellant, W. N. Horne, a notice that it was the intention of the City of Ocala to enforce the paving liens upon the property now in question, describing same, by a suit in chancery pursuant to Chapter 15038, Laws of 1931, on or after December 23, 1938, unless the paving certificates were redeemed pursuant to said statute. Also in pursuance of the statute and of the prayer of the bill publication of notice was made and proof of publication filed, and affidavit made by the clerk. The notice was addressed 'To all persons and corporations interested in or having any lien or claim upon any of the lands described herein;' which was followed by a description of several parcels of land and the amount of the special assessment lien for paving, etc. The notice thus published stated that: 'You are hereby notified to appear and make your defense to said bill of complaint on or before the 6th day of February, A. D. 1939, and if you fail to do so on or before said date the bill will be taken as confessed by you and you will be barred from thereafter contesting said suit, and said respective parcels of land will be sold by decree of said court for nonpayment of said taxes and special assessment liens for paving and interest and penalties thereon and the costs of this suit.'

This notice did not contain the name of any of the owners or persons interested in any of the described land. Nor did the statute require this to be done.

The decree pro confesso was entered by the clerk on February 6, 1936. Complainant then filed an affidavit with the city clerk setting forth the charges against the several different tracts of land, and also one by the tax collector as to certain of the lands, and also affidavit as to attorney's fees. Final decree was entered on March 6, 1939, fixing the amounts, including attorney's fees, and cost of abstract, and in pursuance thereof the master therein appointed, after advertisement describing the several parcels of land, which was published once each week for two consecutive weeks, sold the land at public sale to the City of Ocala and reported the same to the court. The Circuit Court confirmed the sale, requiring all in possession to surrender possession upon production of the deed of the special master.

In its decree ordering the sale of the lands the court retained jurisdiction of the cause 'to settle all questions arising herein which have not been settled by this decree or other orders and decree in this cause and to make such other and future orders in connection therewith as shall to it seem meet and proper.'

No summons as in chancery were issued, no process was served upon the uppellants or either of them, and they did not know of the pendency of the proceedings in court until the City of Ocala through its officers exhibited the master's deed and demanded possession from respondent some time after the sale had been confirmed. Upon refusal of the respondent to deliver possession, application was made to the Circuit Court for writ of assistance, which application was granted by the court and writ of assistance was awarded to the appellee, from which decree the appellants have taken this appeal.

The respondent Horne, appellant here, filed his answer to the application for writ of assistance, setting forth his ownership and possession of the property through and under his tenants Blackburn and Green. His answer shows that he resided in the City of Ocala during the entire pendency of the proceedings, and before that, and was personally acquainted with all of the officers and that there was nothing to prevent service of process; yet he was not made a party defendant, nor was any effort made to do other than to foreclose against the lands without naming parties; that neither he nor his tenants in possession were notified or had any knowledge of the proceedings until the City demanded possession of the property. He admitted receiving the letter from the City Attorney on November 21, 1938, which warned him that unless the paving assessment was paid a bill in chancery to enforce the same would be filed on or after December 23, 1938. Then he proceeds in his answer to deny that the complainant city was entitled to a writ of assistance to put it into possession of said property and also attacks the constitutional validity of Chapter 15038 on various grounds.

The first question presented by the appellants is whether a municipality which procures a master's deed to lands under the decree of foreclosure of paving certificates in a suit brought under the provisions of Chapter 15038, Laws of 1931, against the lands only, no service of process being effected upon the owner, and the owner not appearing, is entitled to a writ of assistance to put it into possession of the property against the owner who was in possession at all times during the pendency of the proceedings, but had no knowledge thereof until after the master's deed had issued.

As this court has on previous occasions sustained the validity of the act referred to (City of Coral Gables v. Certain Lands, 110 Fla. 189, 149 So. 36), we will confine ourselves to a discussion of the elementary question of statutory construction which is here presented.

The title of the Act reads as follows:

'An Act Relating to the Enforcement of Taxes and/or Special Assessments and Interest and Penalties Thereon Imposed by Any Incorporated City or Town in the State of Florida; Providing a Supplemental, Additional, Optional and Alternative Method of Enforcing Such Tax Liens and/or Special Assessments and Interest and Penalties Thereon by Suit in Chancery in the Nature of a Proceeding in Rem Against the Lands Upon Which Such Taxes

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