Kester v. Bostwick

• Decision Date: 30 July 1943
• Citation: 153 Fla. 437,15 So.2d 201
• Parties: KESTER v. BOSTWICK et al.
• Court: Florida Supreme Court

15 So.2d 201

153 Fla. 437

KESTER v. BOSTWICK et al.

Florida Supreme Court

July 30, 1943

Rehearing Denied Oct. 12, 1943. [Copyrighted Material Omitted]

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

Miller & Fitzsimmons and McCune, Hiaasen & Fleming, all of Fort Lauderdale, and Vincent C. Giblin, of Miami, for appellant.

Milam McIlvaine & Milam, of Jacksonville, for appellees.

PER CURIAM.

On September 9 1936, W. L. Kester by the tax deed route acquired title to forty-eight lots at Pompano Beach in Broward County. Early in 1937, he took possession of these lots and began to improve by grading, paving, and landscaping and by erecting thirty-two dwellings and twenty-nine garages on them, which improvements totalled more than $100,000 and were completed in 1938.

In September, 1940, Nellie L. Cowan Bostwick instituted action in ejectment to recover said properties including mesne profits of approximately $18,000 per annum for about four years they were held by defendant under the tax deed. At the conclusion of the trial, the jury returned a directed verdict for the plaintiff as to title to the property, thus holding the tax deed void, and found for the defendant as to mesne profits. Judgment was entered accordingly and defendant appealed from that part adjudicating the tax deed to be void. Plaintiff appealed from that part denying mesne profits.

A number of questions are argued but it is admitted that the question of primary importance turns on the validity vel non of the tax deed under which Kester claims title to the forty-eight lots of land in dispute.

Plaintiff below assailed the tax deed for insufficiency of description in the notice of application therefor and for failure to mail the last known owner notice of application for the tax deed when advertised as the law directs. In the tax deed and the notice therefor, the lands were described as follows:

'Lot 1 to 5, Blk. 1, Pompano Beach..... Lot 1, Blk. 2, Pompano Beach..... Lot 1, Blk. 5, Pompano Beach..... Lot 2, Blk. 6, Pompano Beach..... Lot 4, Blk. 7, Pompano Beach..... Lot 1 to 10, Block 8, Pompano Beach ..... Lot 6, 7, 8, Block 10, Pompano Beach..... Lot 3, Blk. 11, Pompano Beach ..... Lot 2, Blk. 12, Pompano Beach..... Lot 1, 2, Blk. 13, Pompano Beach..... Lots 5, 6, Blk. 13, Pompano Beach.....'

Appellant contends that this description was ample and relies on Day v. Benesh, 104 Fla. 58, 139 So. 448, and Mitchell v. Moore, Fla., 13 So.2d 314, decided May 4, 1943, not yet reported [in State reports], and like cases to support his contention. Appellee contends on the other hand that the description is not sufficient and relies on Newsom v. Belle Mead Dev. Corp., 131 Fla. 143, 179 So. 160; Schouten v. Hunt, 146 Fla. 360, 200 So. 923, and like cases to support her contention.

This Court early laid down the rule to be sufficient the description of land in a deed must be such that a surveyor could locate it without difficulty. As to tax deeds, we have consistently held that the description of the land must be certain in itself or capable of being made certain by matters relating to the description that are referred to in the tax deed. Evidence aliunde, not referred to in the deed, cannot be employed to point out the land intended to be conveyed.

It is contended that this rule has been relaxed in the cases relied on by appellant but we do not so construe them. In Mitchell v. Moore, supra , the description was as follows: 'Tract 38, Less Road, Blk. 85, Palm Beach Farms'. We held it good because 'Palm Beach Farms' as referred to in the deed was generally known as such and there was no other plat in the county with which it could be confused. In Day v. Benesh, supra [104 Fla. 58, 139 So. 450], the description was 'Lot 10, Block 207 Lake Worth'. The town of Lake Worth was the only one of the name in Palm Beach County and we upheld the description in this and in Mitchell v. Moore because it was sufficiently definite that it could be made certain by matters referred to in the deed. In Mitchell v. Moore, supra, we did abrogate the rule long prevalent in Florida requiring greater strictness as to description in a tax deed than as to one inter partes but we went no further.

The description of the lands involved in the tax deed under attack is limited to certain numbered lots and blocks in Pompano Beach. The record shows that Pompano Beach is a considerable stretch of unincorporated ocean front in Broward County without defined limit, that there is a community near by known as Pompano Beach which is unincorporated, and that there are seven well known plats of subdivisions known as Pompano Beach or some derivative of it recorded in Broward County. The evidence shows that the description quoted might apply as well to the community of Pompano Beach as the plat of ocean front by the same name and that it would be very difficult to tell which subdivision embraced the lots in this case. For this reason, we think the description here fell short of the mark of accuracy required by the law.

On the point of failure on the part of the Clerk of the Circuit Court to mail the owner a copy of the notice of application for the tax deed, it appears that at the time the tax certificates were issued on which the tax deed was based, the statute controlling such notice was Chapter 12409, Acts of 1927, Section 1001, Compiled General Laws of 1927, F.S.A. § 194.16, and Chapter 14572, Acts of 1929, F.S.A. § 192.21, while at the time the application for the tax deed was made, the controlling statute was Chapter 17457, Acts of 1935, F.S.A. §§ 194.15-194.24. The latter statute requires that copy of such notice be mailed to the last known owner but the former statute in effect at the time the certificates were issued makes no such requirement.

Appellant contends that the statute in effect at the time the tax certificates were issued governs the application for the tax deed, while appellee contends that the statute in effect at the time the application was made for the tax deed governs its issuance. Appellant relies on Barnett v. Ozark Corporation, 131 Fla. 831, 180 So. 376; Coult v. McIntosh Investment Company, 133 Fla. 141, 182 So. 594, and like cases to support his contention. Appellee relies on Clark-Ray-Johnson Company v. Williford, 62 Fla. 453, 56 So. 938, and like cases to support her contention.

The decisions are somewhat confusing but we think the very terms and import of the statute conclude the point. Chapter 17457, Acts of 1935, F.S.A. §§ 194.15-194.24, is a complete revision of the law for securing tax deeds and sets out all of the essential requirements for doing so. It in terms repeals Section 1001, Compiled General Laws of 1927, F.S.A. § 194.16, relied on by appellant and is the controlling law on the subject. It became effective October 1, 1935, and required the Clerk to mail a copy of the notice of application for tax deed to the last known owner. The record shows complete failure to comply with the statute on this point. We think the requirement was jurisdictional and that failure in this rendered the tax deed void. In this holding, we do not overlook the difference between the notice by mail and the jurisdictional notice by publication referred to by appellant. We think both were required by the statute (Chapter 17457, Acts of 1935, F.S.A. §§ 194.15-194.24).

We next consider the question of whether or not the plaintiff or cross appellant is entitled to recover mesne profits for the use of the lands while they were held by appellant and may such profits be augmented because of the permanent improvements placed on them.

At common law, the successful plaintiff in ejectment recovered the property with nominal damages for rents and profits; it mattered not whether he (defendant) was a bona fide or a mala fide holder. The action for mesne profits was one in trespass and could be brought for that purpose after the judgment in ejectment. Section 5040 et seq., Compiled General Laws of 1927, F.S.A. § 70.01 et seq., authorizes a combination of the action of ejectment with that of trespass for mesne profits but prescribes no procedure as to the latter. Since the two remedies are combined in one declaration they should be submitted and concluded in the same case.

The general rule is that the successful plaintiff in ejectment may recover all mesne profits accruing during the adverse occupancy by the defendant. In some jurisdictions, they may be recovered up to the date of the trial. The measure of mesne profits sometimes called damages is the value of the use and occupation of the land during the period defendant is shown to have been wrongfully in possession. The value of the use is measured by the value of the rents and profits.

In the case at bar, the land in question was wild and unimproved ocean front that had little or no rental value for agricultural purposes but it had a good potential value for residence and business purposes when improved in the manner heretofore stated. It is by virtue of rentals that accrued from the improved lots that the mesne profits are sought so the question of whether or not the permanent improvements should augment the mesne profits is the main issue on this point.

Appellee contends that the answer to this question turns on that of whether or not defendant was a holder in good faith and she says the record shows that he was not such a holder. Johns v. Gillian, 134 Fla. 575, 184 So. 140; Boose v. Henderson, 148 Fla. 101, 3 So.2d 757, and Lee v. Bowman, 55 Mo. 400, are relied on to support this contention.

The general rule is that mesne profits are measured by the rental value of the property or its value for use and occupation during the time defendant was shown to have been wrongfully in possession. This value...