Kostecos v. Johnson

• Decision Date: 03 February 1956
• Parties: Victor KOSTECOS, Appellant, v. William H. JOHNSON, Jr., Appellee.
• Court: Florida Supreme Court

Page 594

85 So.2d 594

Victor KOSTECOS, Appellant, v. William H. JOHNSON, Jr., Appellee.

Supreme Court of Florida, Special Division B.

Feb. 3, 1956.

Rehearing Denied March 14, 1956

Clyde H. Wilson and Early & Early, Sarasota, for appellant.

Williams, Dart & Bell and W. T. Harrison, Jr., Sarasota, for appellee.

THORNAL, Justice.

Appellant Kostecos, who was plaintiff below, seeks reversal of a summary judgment in favor of appellee Johnson, who was defendant below, in an ejectment proceeding.

Appellant Kostecos bases his claim of title on a Master's Deed executed pursuant to a final decree in a foreclosure of delinquent drainage district taxes, under Chapter 298, Florida Statutes, F.S.A. Appellee Johnson bases his possession and claim of title on a deed from Sarasota County issued under the Veterans Homestead Act, Sections 253.351-253.356, Florida Statutes, F.S.A., the county having obtained its title pursuant to a foreclosure or so-called 'quiet title' decree in a delinquent county tax proceeding under Chapter 22079, Laws of Florida 1943.

An understanding of the problem presented by the appeal requires a statement of events in chronological order. On December 29, 1943, Sarasota County filed a proceeding under Chapter 22079, Laws of Florida 1943, to quiet and confirm its title to the land in question because of delinquency in the payment of 1940 taxes. Almost ten months later on August 7, 1944, Pearce Drainage District, a drainage district organized under Chapter 298, Florida Statutes, F.S.A., filed its complaint to foreclose delinquent drainage district taxes against the same land. The drainage district proceeded under Section 298.75, Florida Statutes, F.S.A., and caused to be published in a local newspaper a notice to 'all persons, firms or corporations having any interest in or lien upon the lands described in this notice,' which included the land in dispute. The notice advised that suit had been filed and fixed a return date. There was no 'personal' service and the county did not participate in the case. On April 3, 1945, the final decree was entered in the county suit vesting the fee simple title in Sarasota County. Two months later on July 6, 1945, a final decree was entered in the drainage district suit. On January 17, 1948, a Special Master's Deed pursuant to the drainage foreclosure final decree, was executed and delivered to the appellant Kostecos. The land apparently was unoccupied during most of this time but on July 17, 1953, Sarasota County executed the deed to appellee Johnson under the Veterans' Homestead Act which requires the veteran to occupy and develop the land for a period of three years before he receives a deed. See Section 253.351, Florida Statutes, F.S.A. It is to be assumed therefore that Johnson entered possession at least three years prior to July 17, 1953, and was in possession on August 21, 1951, when the complaint in ejectment in the appeal before us was filed.

The ejectment suit proceeded through various preliminary stages until May 14, 1954, when johnson filed a motion for summary judgment relying upon the title of Sarasota County as conveyed to him by the deed of July 17, 1953, and contending that this title was paramount and superior to the claim of title asserted by appellant under his drainage district foreclosure Master's Deed.

Our consideration of the record on this appeal is complicated by the fact that in entering a summary judgment for the appellee, the trial judge took judicial notice of the records in the county delinquent tax proceeding and in the drainage district foreclosure proceeding. Apparently both parties agreed to this and the trial judge recited in his judgment that he had done so. Although no error is assigned on this proposition, both parties evidently agreeing that the procedure was correct, we are constrained to point out that the trial court is not authorized to take judicial notice of the records in a different case pending or disposed of in the same court but outside the record in the case before him. See Adams v. Adams, 126 Fla. 217, 170 So. 697, and Cassels v. Ideal Farms Drainage District, 156 Fla. 152, 23 So.2d 247. The case before us illustrates the sense of the rule.

The judgment recites that the trial judge took judicial notice of the entire contents of the records in the two delinquent tax cases. Undoubtedly he could conveniently call upon the office of the clerk of the court to bring the records before him and make them available for his examination in arriving at a judgment. Upon appeal, however, this court is not similarly situated and we are, therefore, obviously without the information contained in the two records in the circuit Court of Sarasota County which may or may not have properly constituted the basis of the summary judgment that was entered because these records do not constitute a part of the record on appeal unless they were appropriately introduced in evidence either in the original or by certified copy and then included in the record sent to this court for consideration.

By directions to the clerk in the preparation of the record in this appeal, the appellant did have included in the record before us some parts of the records in the other two cases. The appellee did not object to this and we will, therefore, under the circumstances consider those portions of the records in these other two cases that have been so forwarded to this court. While we do not approve this procedure, we will treat the portions of the records sent to us as having been forwarded here by the consent of both parties. At best these are only partial records but we cannot go beyond them in considering this appeal.

We come to a consideration of the merits of the matter presented by the appeal. Appellant Kostecos contended in the lower court and seeks reversal on the proposition that although the county tax suit was filed first, the drainage district final decree was entered two months after the county tax final decree and, being a later acquired original title from a new and independent source, should take priority over the earlier title acquired by the county likewise from a new and independent source. This position is grounded on the proposition that at the time the delinquent tax suits were instituted, county tax liens and drainage district tax liens were equal in dignity, and, when the county foreclosed its liens and obtained the title by the final decree, it did so in recognition of the equality of the drainage district liens. Further, that the county foreclosure decree eliminated the lien status of the county's position, changing it to a title status subject to the outstanding delinquent drainage district liens that were not satisfied. Appellant recognizes that, because the county liens were equal in dignity with the drainage liens, it could not have eliminated the county's interest while that interest was evidenced by delinquent tax liens only but asserts that when the county foreclosed its liens, it substituted therefor a title under Chapter 22079, Laws of Florida 1943. The county, for all practical purposes, so the appellant asserts, 'foreclosed itself into a lawsuit' and thereby subordinated its title as distinguished from its equal lien status to the outstanding delinquent drainage liens.

In relying on the county's title the appellee seeks affirmance of the judgment in his favor with the contention that the county's title under the delinquent tax proceeding was a new and original title which could not be eliminated by the then pending drainage tax foreclosure suit and even if it could, appellee asserts the drainage tax suit proceeded without service of process of any kind or nature upon the county and, so far as the county was concerned, the final decree was obtained in contravention of the due process requirements of the state and federal Constitutions. He grounds this position on the proposition that the drainage lien foreclosure suit was brought particularly under Section 298.75, Florida Statutes, F.S.A., which makes no provision whatever for the service of process in any form or manner and, absent some requirement of due process in some form, the statute under which the drainage district proceeded is unconstitutional and any decree obtained in any such proceeding is necessarily without force and effect.

To bring the issue to a focal point, appellant replies that the drainage foreclosure proceeding was one in rem, against the land only and that service of process on persons interested in the land was unnecessary. In this view the land, being obviously within the jurisdiction of the court, is the res upon which the court acted in entering the decree and having jurisdiction of the res, the court was authorized to enter the decree so long as such decree was limited to the particular res (land) within the court's jurisdiction.

At the time of the two tax foreclosure suits, county tax liens and drainage district tax liens were of equal dignity. See Section 298.41, Florida Statutes, F.S.A.; Sections 19 and 21, Chapter 22079, Laws of Florida 1943, F.S.A. §§ 194.53, 194.55; State ex rel. Groves v. Caruthers, 141 Fla. 736, 193 So. 849. The case before us is not affected by the 1947 amendments to Chapter 22079, Laws of Florida 1943. See Chapter.24206, Laws of Florida 1947.

The instant appeal is governed by Section 194.53, Florida Statutes, F.S.A., Section 19, Chapter 22079, Laws of Florida 1943, which reads as follows:

'Upon the entry of the Chancery Decree provided in Section 36 of the Act, all rights, titles, interests in, or liens upon said property, except liens for general taxes, other than county tax liens, and municipal liens of equal dignity with county tax, shall be cut off and extinguished, and forever declared null and void, and the title to such lands when conveyed by the county shall be construed in all respects as a new, original title, subject only to such liens for general taxes of equal dignity to county liens for...