Johnson v. Benbow

• Decision Date: 21 January 1927
• Citation: 93 Fla. 124,111 So. 504
• Parties: JOHNSON v. BENBOW.
• Court: Florida Supreme Court

111 So. 504

93 Fla. 124

JOHNSON v. BENBOW.

Florida Supreme Court

January 21, 1927

In Banc.

Suit by O. C. Benbow against Olive H. Johnson to quiet title against tax deeds. From an order overruling a demurrer to the complaint, defendant appeals.

Affirmed in part, and reversed in part, with directions.

Syllabus by the Court

SYLLABUS

One part of demurrer in five parts, addressed to entire bill will be treated as general demurrer, and other parts as separate demurrers to paragraphs or allegations to which they are addressed. Where a demurrer to a bill in equity is divided into five 'parts,' one 'part' being addressed to the entire bill, and the remaining four 'parts' of the demurrer each containing several grounds and severally addressed to separate portions or allegations of the bill, that 'part' addressed to the entire bill will be treated as a general demurrer, and the other 'parts' as separate demurrers to the several paragraphs or allegations of the bill to which they are severally addressed.

General demurrer to bill containing any equity will be overruled. A general demurrer to a bill of complaint will be overruled, if there is any equity in the bill.

One defendant against whom relief is sought in every phase of equity case may not in general demur to complaint for misjoinder of causes of action. 'While a bill in equity should not contain distinct and disconnected causes of action as to which different independent decrees may be rendered yet one defendant against whom relief is sought in every phase of the case is not [as a general rule] prejudiced by the joinder of [such] matters, and he cannot in general justly complain on his demurrer to the bill of complaint of having one rather than several suits brought against him.' Id.

That demands, otherwise distinct, relate to same subject-matter frequently justifies their union in one bill. 'Frequently the fact that demands which are otherwise entirely distinct relate to the same subject-matter affords a sufficient connection to justify their union in one bill, and avoids an objection for multifariousness.' Id.

Bill to quiet title against tax deeds for state and county taxes and for drainage taxes is not subject to demurrer for multifariousness (Rev. Gen. St. 1920, § 1176). Where the owner of real estate files a bill in equity against the holder of two tax deeds for said property, one of said tax deeds having issued for the delinquent state and county taxes and the other for delinquent drainage taxes upon said property, each of said deeds, according to the allegations of the bill, being invalid, but casting a cloud upon the owner's title, held that the respondent, the holder of such tax deeds, cannot, in such suit brought to quiet title as against such tax deeds, complain that the bill is multifarious.

Bill to quiet title against tax deeds, not alleging payment of taxes interest, and charges, or offer and readiness, whillingness and ability to pay, held good on demurrer (Rev. Gen. St. 1920, § 795). Where, in a bill filed to cancel tax deeds and to quiet title as against them, it is alleged that the said tax deeds were issued to one other than the purchaser to whom tax sale certificates were issued, and that such tax sale certificates were never assigned to the grantee named in said tax deeds, and that there was no indorsement of an assignment on such tax sale certificates, and that neither of the tax deeds recited that the tax sale certificates, for which the respective tax deeds issued, were assigned by the purchaser to the grantee named in such tax deeds, held that it was not necessary that the bill of complaint allege either payment of the taxes, interest, and charges which had been paid by the purchaser at the tax sale, or by the grantee named in the tax deeds, or an offer and readiness, willingness, and ability to pay such amount as the court might decree should be paid therefor.

To enable any other than purchaser at tax sale to take tax deed, there must be assignment of tax deed certificate: recital of assignment of tax sale certificate should be made in tax deed (Rev. Gen. St. 1920, §§ 766, 767, 1173). To enable any other than the purchaser at a tax sale to take a tax deed to the property sold, there must be an assignment of the tax sale certificate, and a recital of such assignment should be made in the deed.

Allegation of payment or offer, or readiness, willingness, and ability to pay taxes, interest, and charges held not necessary in bill to quiet title against tax deeds. Where it appears, by proper allegations of a bill in equity to remove and cancel tax deeds as clouds upon complainant's title, that the purchaser of property at tax sales had not assigned the tax sale certificates to the grantee in the tax deeds, and that the tax deeds contained no recital of such assignments, the complainant is not required to allege either payment, or an offer, readiness, willingness and ability to pay the holder of such tax deeds the taxes, interest, and charges that may have been paid by the said holder of such deeds.

Defendant in equity suit may put in separate and distinct causes of demurrer; in equity suit, one demurrer may be overruled on argument and another allowed. 'A defendant may put in separate and distinct causes of demurrer; for the same grounds of demurrer frequently will not apply to different parts of a bill, though the whole may be liable to demurrer, and in such a case one demurrer may be overruled upon argument and another allowed.' Fletcher's Pleading and Practice, par. 201.

General demurrer to bill, setting forth various claims, will be overruled if one claim is proper for jurisdiction and cognizance; demurrer to whole bill and specifically to different claims therein, part of which authorize no relief, should be sustained in part and overruled in part as to which defendant should be required to answer. 'Where a bill in equity sets forth various claims by distinct and separate paragraphs, and the defendant files a general demurrer, such demurrer will be overruled if any of the claims be proper for the jurisdiction and cognizance of the court in that form of proceedings; but when there is a demurrer to the whole bill, and also specifically to each of the several claims set out therein, and a part of those claims so demurred to are of such a character as to authorize no relief in such a suit, the court should sustain the demurrer in part, and should dismiss so much of the bill as seeks relief in reference to matters adjudged bad, and overrule the demurrer as to the residue, and give a rule against the defendant to answer the bill as to such residue.' Gay v. Skeen, 36 W.Va. 582, 15 S.E. 64.

Complaint to set aside tax deeds, alleging land was assessed for much less than it was sold for, including costs, etc., held bad as conclusions of pleader on separate demurrer thereto (Rev. Gen. St. 1920, §§ 760, 1171). In a bill of complaint to set aside a tax deed for state and county taxes, and also a tax deed for drainage taxes, the complainant alleges that the property 'was assessed for state and county purposes and for drainage purposes for a sum materially less than the sum for which the property sold; that the sum for which the said property was assessed, plus all charges for advertising, costs, and penalties, as allowed by law, was not as great as the sum for which said property was sold; that said property was sold in excess of the legal assessment imposed upon the said property.' Held that such allegations are mere conclusions of the pleader, and that the separate demurrer to such allegations should be sustained.

Assessment of 'tracts' designated on recorded plat as 'lots' does not warrant valid sale for drainage taxes (Rev. Gen. St. 1920, §§ 718, 1168). Where a section of land is subdivided into parcels designated as 'tracts,' and a plat with such designations is filed in the office of the clerk of the circuit court, and the said parcels are conveyed as 'tracts' according to such recorded plat, an assessment of such 'tracts' as 'lots' is improper, and cannot, under the law, be said to be sufficient to warrant a valid sale of the property for the unpaid taxes thereon.

Bill to quiet title against drainage tax deed, alleging no assignment of tax sale certificate to grantee in deed, is good on demurrer (Rev. Gen. St. 1920, § 1176). Where, in a bill in equity to set aside a drainage tax deed, it is alleged that there was no assignment of the drainage tax sale certificates by the purchaser to the grantee named in such tax deed, and that therefore such tax deed was issued to one who was not entitled to it, such allegation shows that the drainage tax deed was improperly issued, and is therefore a cloud upon complainant's title and will withstand a demurrer, notwithstanding the provisions of section 1176, Revised General Statutes of Florida, restricting the grounds for attacking the validity of deeds for drainage taxes.

Statute held not to authorize clerk of circuit court of De Soto county to issue tax deeds to land in Glades county after its organization (Laws 1921, c. 8513). There is nothing in chapter 8513, Laws of Florida, Acts of 1921, authorizing the clerk of the circuit court of De Soto county, Fla., to issue tax deeds to lands in Glades county, Fla., after its organization.

Notice of application to clerk of circuit court for tax deed must be published in county in which lands are situated at time of application (Rev. Gen. St. 1920, § 1176). A notice of application to the clerk of the circuit court for a tax deed must, under the law, be published in the county in which the lands are situated at the time of such application.

Appeal from Circuit Court, Glades County; George W. Whitehurst, judge.

COUNSEL

R. C Horne, of...