Hughey v. Winborne

• Court: Florida Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Hughey v. Winborne, 44 Fla. 601, 33 So. 249 (Fla. 1902)
• Decision Date: 07 October 1902
• Parties: HUGHEY v. WINBORNE et al.

33 So. 249

44 Fla. 601

HUGHEY v. WINBORNE et al.

Florida Supreme Court

October 7, 1902

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

Suit by Robert W. Winborne and another against W. F. Hughey. From a judgment for plaintiffs, defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. A court of equity has jurisdiction to declare void, as a cloud on title, a tax deed not made by statute prima facie evidence of title or of the regularity of the proceedings, where the defect does not appear upon the face of the deed, and is of such a character as that it will not necessarily and indubitably appear from the evidence that the tax-title holder must necessarily introduce in order to prove title under such deed.

2. A deed executed by the governor and secretary of state under chapter 4011, Acts 1891, for lands certified to the state for nonpayment of taxes assessed under chapter 4010, Acts 1891 may be declared void, as a cloud on title, by a court of equity, where the assessment was made by the collector of revenue, and not by the assessor, and the land was not assessed in the name of the owner or person in whose name the return was made, or as 'unknown,' but in the name of a fictitious company or person; and this is true whether the deed be or be not prima facie evidence of title or of the regularity of the proceedings.

3. An appellate court will not, sua sponte, notice a defect of allegation in a bill in equity unless the defect be such as that the bill wholly fails to state a case for equitable relief.

4. Knowledge on the part of the owner of property that an alleged assessment thereof for taxes is void does not vitalize such void assessment, nor does the payment of a void tax in one year render valid a void tax of a succeeding year.

5. Section 22 of chapter 4010, Acts 1891, does not authorize the assessment of property in the same name as it was assessed for the previous year; nor does section 31 authorize such assessments, except when made by the clerk of the court.

6. Wrongful forcible possession is not such possession as the owner must have in order to maintain a bill to remove a cloud on title.

7. Where the defendant in a proceeding in equity to declare void a deed held by him, based upon a certification of land to the state for nonpayment of taxes, makes no proof as to the amount of taxes and disbursements which he claims should be refunded to him by the complainant, it is not error for the court to declare void the deed, without making provision for the payment by complainant to defendant of taxes and disbursements.

COUNSEL Horatio Davis, for appellant.

W. W Hampton, for appellees.

OPINION

PER CURIAM.

This cause was referred by the court to two of its commissioners Messrs. Maxwell and Glen, for investigation, who report that the decree ought to be affirmed.

From the abstract it appears that this was a suit in equity in the circuit court of Alachua county, brought by appellees against appellant to remove a cloud upon their title, by declaring void a tax deed to appellant executed by the governor and secretary of state under chapter 4011 of the Acts of 1891 known as the 'Hammond Act,' and for injunction. The court rendered final decree for appellees, and this appeal was taken therefrom.

The first error assigned is the order of the court overruling a demurrer to the bill. The ground of demurrer was a general one, viz., no equity in the bill. The only contention made by appellant under this assignment is that the assessment upon which the tax deed was based is void on its face, and that a deed executed under this act is not made prima facie evidence of the regularity of the assessment and sale; therefore the person relying upon the deed must introduce all of the proceedings in evidence in support of his title, and, as the invalidity of the sale would then appear, no cloud would exist. The appellant attempts no application of his contention to the specific allegations of the bill, but rests upon the broad assertion that any defect in the proceedings must necessarily appear from the proceedings which he would be compelled to prove.

For the purposes of this case, we will assume that the appellant correctly contends that the deed is not prima facie evidence of a valid sale. In order to state a case, the bill should show a vital defect in the proceedings leading up to the sale; and such defect must be one not apparent upon the face of the proceedings, but depending for its proof upon extrinsic evidence.

In this bill two irregularities are alleged: The first is that the property was assessed by the collector of revenue, who is not, by the act under which this assessment was made authorized to assess property. It is not affirmatively alleged that this irregularity does not appear from the face of the assessment roll, but there is no presumption that it does so appear. If there is any presumption in the case, it is that the roll does not indicate on its face by whom the items therein were entered, as in the case of Sloan v. Sloan, 25 Fla. 53, 5 So. 603, where an assessment made by the collector of revenue was held to be invalid. The case, therefore, would not, in our judgment, fall within the rule stated in Heywood v. City of Buffalo, 14 N.Y. 534, even if that case correctly applies the principle stated therein. As bearing upon the same subject, see Smith v. Gilmer, 93 Ala. 224, 9 So. 588; Goldsmith v. Gilliland, 22 F. 865, 10 Sawyer, 606 (text, 609); Teal v. Collins, 9 Or. 89; Chaplin v. Holmes, 27 Ark. 414; Society v. Ordway, 38 Cal. 679. See, also, Barnes v. Mayo, 19 Fla. 542; Shalley v. Spillman, 19 Fla. 500; Reyes v. Middleton, 36 Fla. 99, 17 So. 937, 29 L. R. A. 66, 51 Am. St. Rep. 17. Upon this allegation of irregularity alone it should be held that the bill states a case for relief.

The other allegation of defect in the assessment is that the collector assessed the property to the 'Albion Mining Co.,'--there being no such company in existence,--and did not assess the property to the owners thereof, nor as unknown. This defect necessarily depends upon matter in pais, or parol evidence, for the assessment roll would not necessarily show who was owner or in possession, or who made the return. The assessment, on its face, would prima facie be to the owner or person making the return, and it would require extrinsic evidence to show otherwise. The tax-title owner would not necessarily be compelled to prove that it was assessed to one not the owner, merely because such was the fact, for the might produce evidence contrary to the fact, and in that event the owner would be compelled to introduce counter evidence. This we think, under our decisions above referred to, gives equity jurisdiction, though the contrary is held in Marsh v. City of Brooklyn, 59 N.Y. 280. We think the true rule is that the defect must necessarily and indubitably appear from the evidence that the tax-title holder must necessarily introduce to sustain his title in order to oust the court of equity of jurisdiction. The statute (chapter 4010, Acts 1891) under which the assessment was made provided in section 23 that the property must be assessed 'in the name of the owner or person in whose name the return is made,' or in certain cases as 'unknown.' We will assume, for the purposes of this discussion, that an assessment made in the name in which the property is returned is valid, whether the return is made by a person duly authorized thereto or not. In order that an assessment be shown to be invalid, it must appear that the name in the assessment roll is not that of the owner, nor that in which the return was made. The bill distinctly avers that in this case the assessment was not in the name of the owner. Whether it sufficiently negatives the idea that the property was assessed as returned is a more difficult question. The allegation is that the property was assessed to the Albion Mining Company, there being no such company in existence.

The other portions of the revenue act of 1891 which refer to the return of property for taxation are section 22, which provides for a description 'as returned for taxation by the owner or agent'; section 23, where it provides that 'the owner or person making the return of any real estate' may complain of the valuation fixed by the assessor; and section 25, where it provides that the assistant assessor shall give the value of his assessments and 'the names of the owners or persons making the tax returns.' In each of these sections it appears that the statute contemplates a return in the name of the person making it, and it cannot be doubted that the language in the earlier part of section 23, 'the owner or person in whose name the return is made,' is used in the same connection and contemplated a similar return. In this case there is no contention of counsel that the bill is faulty in nor negativing the...