Klich v. Miami Land & Development Co.

• Decision Date: 21 July 1939
• Court: Florida Supreme Court
• Parties: KLICH et ux. v. MIAMI LAND & DEVELOPMENT CO.

191 So. 41

139 Fla. 794

KLICH et ux. v. MIAMI LAND & DEVELOPMENT CO.

Florida Supreme Court, Division B.

July 21, 1939

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Action of ejectment by the Miami Land & Development Company against Frank Klich and Mrs. Frank Klich, his wife. The court granted plaintiff a new trial, after having directed a verdict for the defendants, and the defendants bring error.

Affirmed.

COUNSEL

Ira C. Haycock, of Miami, and Don E. Ferreya, of Homestead, for plaintiffs in error.

J. M Flowers, of Miami, for defendant in error.

OPINION

WHITFIELD Presiding Justice.

The Writ of Error was taken to an order granting a new trial after a directed verdict for defendants, as allowed by section 4615(2905), Comp.Gen.Laws. See Powell v. Jackson Grain Co., 134 Fla. 596, 184 So. 492; Louisville &amp N. R. Co. v. Wade, 49 Fla. 179, 38 So. 49; Florida E. C. R. Co. v. Turner, 103 Fla. 300, 137 So. 255.

'On a writ of error taken under the statute to an order granting a new trail in a civil action at law, the only questions to be considered are those involved in the order granting a new trial.' Ruff v. Georgia S. & F. R. Co., 67 Fla 224, 226, 64 So. 782, 783, head note 12.

In an action of ejectment brought by the record owner against those occupying the lands under tax deeds, there was a plea of not guilty and a stipulation of facts upon which the plaintiff below orally moved for a directed verdict, and the defendants filed a motion for a directed verdict upon grounds in substance that the tax deeds issued on municipal tax sale certificates sold to individuals, relied on by the defendants, are not void, but are prima facie valid on their face; and that it appears that the defendants and their predecessors in interest have been in actual continued occupation and use of the lands for four years before this action was begun, and that the action is barred by the statute, sec. 1020, Comp.Gen.Laws; and that rights of third parties were acquired after the assignment of the tax certificates by the town on which the tax deeds were issued.

The court directed a verdict for the defendants, and afterwards granted a new trial on motion of the plaintiff. If the court directed a verdict for the defendants when the law required a verdict for the plaintiff, the order granting a new trial was proper and should be affirmed.

The question to be determined is whether the tax deeds are void or are voidable only. Though invalidity of the tax deeds under which the defendants claim, does not appear on the face of such deeds, yet they may be invalid if the tax assessments on which the tax deeds are predicated werewholly unauthorized by any statute; in such case the tax deeds may be void and will not bar an action to recover the lands duly bought under section 1020, Comp.Gen.Laws, by the owner of the record title.

'A tax deed regular upon its face, and which a statute has made prima facie evidence of the regularity of all the proceedings connected with the assessment and sale, but which is founded upon a void assessment, is a cloud upon title.' Sloan v. Sloan, 25 Fla. 53, 5 So. 603, head note 5.

The stipulation specifies the conveyances of the record title from the State Trustees of the Internal Improvement Fund, culminating in a quit claim deed to the plaintiff corporation. The other paragraphs of the stipulation are as follows:

'2. That each of the above mentioned conveyances conveyed the following described real property, situatem, lying and being in Dade County, Florida, to-wit: Tracts One (1) and Two (2) of Block Three (3), of Section 21, Township 57 South, of Range 39 East, according to Miami Land & Development Company's Subdivision of said lands as shown by plat thereof recorded in Plat Book 5, at page 10, of the Public Records of Dade County, Florida.

'3. That the Plaintiff's claim of title in this cause is based solely upon said instruments so filed of record, as aforesaid, and that there is no contest in this cause as to the validity of any such instruments.

'4. That the Town of Florida City a municipal corporation of Florida, did levy taxes on the above described land for the year 1926, and subsequent years, and on the 5th day of September, 1927, sold the said land for non-payment of said taxes so levied, and executed to the Town of Florida City, two (2) Tax Sale Certificates as follows, to-wit:

'(a) Certificate Number 961, covering Tract Number One (1), above described, * * *.

'(b) Certificate Number 962, covering Tract Number Two (2), above described, * * *.

'5. That both of said certificates were properly assigned by the said Town of Florida City, to one E. M. Foster.

'6. That on the 21st day of April, 1930, the said Town of Florida City, by E. B. Leatherman, Clerk of the Circuit Court of Dade County, Florida, made, executed and delivered to the said E. M. Foster its certain tax Deed of that date conveying to the said E. M. Foster, Tract Number One (1) above described, under the said Tax Sale Certificate Number 961, which was not redeemed, which said Tax Deed was filed for record on the 23rd day of April, 1930, and recorded * * *

'7. That on the 21st day of April, 1930, the said Town of Florida City, by E. B. Leatherman, Clerk of the Circuit Court of Dade County, Florida, did name, execute and deliver to the said E. M. Foster, its certain Tax Deed of that date conveying Tract Number Two (2), above described, under Tax Sale Certificate Number 962, above mentioned, which said Tax Deed was filed for record in the office of the Clerk of the Circuit Court on the 23rd day of April, 1930, and recorded * * *

'8. That on the 18th day of April, 1934, the said E. M. Foster made, executed and delivered to the defendants in this cause, Frank Klich and Mrs. Frank Klich, his wife, a quit-claim deed conveying the above described property, which said quitclaim deed was filed for record on the 20th day of April, 1934, and recorded * * *

'9. That this cause has been transferred to this Court from Chancery Case No. 41457, of the Public Records of Dade County, Florida, and that the defendants in this cause, and their predecessors in title have been in the actual, open, notorious, hostile and exclusive possession, occupancy and use of the above described property, for more than four (4) years prior to the institution of the said Chancery case.

'10. That the defendants in this cause, and their predecessor in title have been in the possession of the property in the manner as above set forth for a period of less than seven (7) years, prior to the institution of the said Chancery case.

'11. That on the first day of May, 1934, a final judgment was entered in that certain cause, wherein the State of Florida on the relation of Cary D. Landis, Attorney General of the State of Florida, was Plaintiff, and the said Town of Florida City was defendant, which said cause was a quo warranto proceeding at Common Law, was filed in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, being Common Law Case No. 15535, of said Public Records; that in and by said final judgment it was ordered and adjudged that said Town of Florida City be ousted and excluded from exercising any rights, powers, privileges, jurisdictions or functions of a municipality over and upon the lands above described; that it was further adjudged in said cause that the Ordinance of said Town under which the above mentioned Tax Certificates were issued, was unconstitutional and void, insofar as it pertains to the above described lands.'

The Court directed a verdict which was rendered for the defendants. A motion for new trial, on the grounds that the verdict is contrary to law and the court erred in directing the verdict, was granted, and the defendants took writ of error.

It appears that the Town of Florida City in Dade county Florida, was incorporated by the inhibitants in 1914 under the general statutes of this State authorizing it, section 2935(1825) et seq., Comp.Gen.Laws; that the lands here in controversy were not...