Jarrell v. Mcrainey

• Decision Date: 11 February 1913
• Citation: 65 Fla. 141,61 So. 240
• Parties: JARRELL et al. v. McRAINEY.
• Court: Florida Supreme Court

61 So. 240

65 Fla. 141

JARRELL et al. v. McRAINEY.

Florida Supreme Court

February 11, 1913

Rehearing Denied Feb. 25, 1913.

Appeal from Circuit Court, Sumter County; W. S. Bullock, Judge.

Bill by W. H. McRainey against D. C. Jarrell and others. Decree for complainant, and defendants appeal. Reversed.

Syllabus by the Court

SYLLABUS

In proceedings to remove a cloud upon title, the complainant must show with clearness, accuracy, and certainty the validity of his own title, and the invalidity of the title of the opposing parties.

If the description of the land contained in a tax deed is so uncertain and indefinite as to render it impracticable to definitely locate the land from the terms of the tax deed itself or from other matters referred to in the deed as bearing on the description, there can be no possession of particular land under the indefinite tax deed.

Greater strictness is required of the description of the land contained in a tax deed than in voluntary deeds. The land must be described with such accuracy that with ordinary and reasonable certainty the land sold can be ascertained and identified.

The description of property in a tax deed must be certain in itself, or at least capable of being made certain by matters referred to in the deed itself as relating to the description, and evidence aliunde, not referred to in the deed, cannot be used to ascertain the land intended to be conveyed.

A tax deed is void for uncertainty where the land is described as 'S. W. 1/4 of the S.W. 1/4 (less 13a) section 32 township 18 south, of range 23 east, and embraced in certificate No. 397 of 1894, containing 27 acres more or less,' and does not afford a basis for title to any land by actual possession under section 591, General Statutes of 1906.

COUNSEL J. T. McCollum and W. T. Martin, both of Tampa for appellants.

H. M Hampton, of Ocala, for appellee.

OPINION

WHITFIELD J.

Prior opinions herein are reported in McRainey v. Jarrell, 59 Fla. 585, 587, 52 So. 10, 304.

On November 2, 1904, W. H. McRainey procured a tax deed to 'S. W. 1/4 of the S.W. 1/4 (less 13a) section 32, township 18 south, of range 23 east, and embraced in certificate No. 397 of 1894, containing 27 acres more or less.' On March 22, 1909, McRainey brought suit to quiet his title to the land, making Mrs. D. C. Jarrell and her husband W. J. Jarrell defendants. The bill of complaint in effect alleges that McRainey is the owner in fee simple of 'S. W. 1/4 of S.W. 1/4, except 13 acres, of section 32, township 18 south, of range 23 east, in Sumter county, Fla.,' by virtue of the mentioned tax deed; that on February 17, 1905, complainant went into actual possession of the lands--'that is to say, the Seaboard Air Line Railway crosses the said lands, leaving a strip on the west side containing about 13 acres, and on the east side containing 27 acres; the latter portion being the portion owned and held by your orator under said tax deed'--that he used the same for turpentine purposes, and has 'erected around the same a substantial wire fence, and has caused the same to be inclosed therewith, and, at the time of the filing of this bill, your orator is still in actual possession of the said lands, using the same for the purposes aforesaid; that such possession of said lands has been continuous for a period of more than four years since the date of the issuance of said deed,' and the former owner has not brought any action against complainant for the recovery of the lands; that complainant was in possession, claiming adversely, when defendants procured a deed to the lands from the former owner or claimant; that defendants have no title and are annoying complainant by their acts and by asserting ownership. Appropriate relief is prayed. The defendants answered, including therein a demurrer: (1) That there is no equity in the bill; (2) that section 591 of the General Statutes does not apply to the tax deed upon which complainant relies; (3) that grounds for equitable relief are not shown. Testimony was taken, and a decree rendered for the complainant. The defendants appealed.

In proceedings to remove cloud upon title, the complainant must show with clearness, accuracy, and certainty the validity of his own title, and the invalidity of the title of the opposing parties. Levy v. Ladd, 35 Fla. 391, 17 So. 635; Houston v. McKinney, 54 Fla. 600, 45 So. 480.

Section 591 of the General Statutes provides that, 'when the purchaser of land at a tax sale goes into actual possession of such land, no suit for the recovery of the possession thereof shall be brought by the former owner or claimant, his heirs or assigns, or his or their legal representatives for the recovery of the possession of such land, unless such suit be commenced within four years after the purchaser at such tax sale goes into possession of the land so bought. * * *'

In Florida Finance Co. v. Sheffield, 56 Fla. 285, 48 So. 42, 23 L. R. A. (N. S.) 1102, 16 Ann. Cas. 1142, it is held that: 'Where the defendant in an action of ejectment, or those under whom he claims, goes into actual possession of land purchased at tax sale under a tax deed regular on its face, but based upon a void assessment, such actual possession for the period of four years, prescribed by section 591 of the General Statutes of 1906, prior to the bringing of the action, will bar the suit.'

The question here presented is whether the tax deed, under which the complainant asserts title, is so 'regular on its face' as to make it ripen into a title to lands by actual, continuous possession under it for four years.

Where the description of land contained in a tax deed is...