Lance v. Smith
Decision Date | 17 March 1936 |
Citation | 167 So. 366,123 Fla. 461 |
Court | Florida Supreme Court |
Parties | LANCE et al. v. SMITH. |
Rehearing Denied April 22, 1936.
En Banc.Error to Circuit Court, Orange County; Frank A. Smith, Judge.
Action by M. A. Smith, as liquidator of the State Bank of Orlando & Trust Company, against M. W. Lance and others. Judgment for plaintiff, and defendants bring error.
Judgment reversed.
George P. Garrett, of Orlando, for plaintiffs in error.
Maguire & Voorhis, of Orlando, for defendant in error.
This was an action of ejectment brought by M. A. Smith, as liquidator of the State Bank of Orlando & Trust Company against W. C. Lance to recover possession of lot 9, block C of Eola Park Heights in Orlando, Fla.
Plea of not guilty was interposed by Lance, W. J. Foster and wife Frank Paul and wife, and Julian Harris. How the lastnamed five persons became parties is not disclosed by the record. The case was tried without a jury upon stipulation of the parties which set forth certain facts.
Smith, as liquidator, succeeded W. H. Tunnicliffe in that position in February, 1933; he succeeded W. L. Tilden in February, 1930, who was appointed in August, 1929. In June, 1925, Harris and wife owned the land and executed a mortgage upon it to Wright, Warlow & Co. to secure the payment of a promissory note for $5,000 payable in June, 1928. The note and mortgage were assigned to the bank. In 1931 Tunnicliffe as liquidator of the bank exhibited his bill in the circuit court to enforce the mortgage lien, obtained a decree in November, 1931, and at the sale which occurred in December, 1931, the property was purchased by the bank acting through the liquidator. The sale was confirmed, and the master executed a deed for the land to the bank. A deficiency judgment for $2,133.37 was entered against Harris.
In September, 1931, the clerk of the circuit court executed a tax deed to William J. and Ruth Foster conveying the land in question. The deed was based upon tax certificate No. 3632 issued upon the sale of the land for taxes in August, 1929, for the unpaid taxes of 1938. It was sold as the property of Julian Harris.
In 1932 the Fosters conveyed the land to Viola C. Paul.
Tax certificate No. 3632 was issued to the state, and two years later was transferred by the clerk to W. J. and Ruth Foster. In the month of August, 1931, the clerk of the court issued a notice of application by the Fosters for tax deeds based upon tax certificate No. 3632, describing the lot in controversy which was the property of Julian Harris, and on certificate No. 3924, dated August, 1929, upon the The notice provided that: 'Unless said certificates shall be redeemed according to law, tax deeds will issue thereon on the 30th day of September, A. D. 1931.' The notice was dated August 27, 1931.
An affidavit is attached to the notice that it was published in the Evening Reporter-Star, a newspaper published in Orange county,' Four weeks on the following dates: Aug. 28; Sept. 4, 11, 18, 25, 1931.' The affidavit was made by Brossier, business manager of the newspaper, on October 1, 1931.
The court held the tax deed to be void because the clerk failed to acquire jurisdiction because he failed to observe statutory requirements necessary to its issuance. The judge also held that the plaintiff was the owner of the fee-simple title to the land and entitled to its possession.
A motion for a new trial was denied. Judgment was entered for the plaintiff. In the judgment entered the following recitation of the judge's finding of fact and law was made:
'That defendant W. C. Lance is in possession of said lot and that he and his co-defendants claiming adversely refuse to deliver possession thereof to the plaintiff and claim under tax deed dated September 30, 1931; this tax deed the Court finds to be void because of failure of the Clerk to acquire jurisdiction because he failed to observe statutory requirements necessary to its issuance.' A writ of error was taken to the judgment.
The tax deed was executed by the clerk so far as the signing and sealing constituted execution of the deed on September 30, 1931. It was filed and recorded by the clerk on October 1, 1931, at 11:55 a. m. The affidavit of publication of the notice of application for the tax deed was sworn to by Brossier on October 1, 1931.
The execution of the tax deed was witnessed by M. A. Howard. She was deputy clerk at the time. It was customary invariably in that office, so she swears, 'to prepare the tax deed and date it as of the date stated in the notice of application for tax deed; but since the owner has a right to redeem until midnight of that date, it was also the invariable custom of the office not to deliver the tax deed until early the following morning, viz: the morning following the date stated as the return day in the notice of application for tax deed.'
She stated further: 'In order that nothing else may be filed against the tax deed, the Clerk's office as an invariable custom records the tax deed, and after recording it, delivers it to the person to whom it is issued. In this matter of recording deed we act as agent for the tax deed owner. We would charge him in advance for the cost of recording. Before issuing the tax deed it is an invariable custom for the Clerk's office to have on file the proof of publication of the notice of application for tax deed. I know of no instance in which this custom has been departed from in these particulars, except within the last few months in the instance of one certain person who has applied for tax deeds. I recognize my handwriting on the face of the photostatic certified copy of the proof of publication of notice of application for tax deed where it is written 'Ch.' and then stamped 'October 1, 1931.' The word 'Ch.' was written by me on said proof of 'publication on October 1, 1931, and at that time said proof of publication was on file in the office of the Clerk of the Circuit Court for Orange County, Florida.'
If the tax deed is valid, then the plaintiff should not have recovered because the title to the land vested by that deed from the state in Viola C. Paul, lessor to Lance.
When Tunnicliffe was liquidator of the bank, he questioned the validity of the tax deed, sought to pay the accrued taxes on the land and redeem it from the lien after the execution of the deed. The clerk of the court refused to accept the tender of money for that purpose, and Tunnicliffe brought an action of mandamus to compel the clerk to permit the bank to redeem the property. The writ was quashed and Tunnicliffe took a writ of error from this court. The judgment was affirmed 'without prejudice to the relator therein to institute other proceedings which he may be advised are proper in the premises.' The point determined was that as the tax deed was valid on its face the clerk could not adjudicate the validity of the proceedings which led up to the issuing of the deed. State ex rel. Tunnicliffe v. Robinson, 117 Fla. 95, 157 So. 178.
The tax deed is valid on its face, but the plaintiff now contends that it is dated before the filing in the clerk's office of the affidavit of publication of the notice of application for the deed. The deed is dated September 30, 1931. The affidavit of publication of notice was filed in the clerk's office on October 1, 1931, the following day, on which day the deed was recorded.
Section 1000, Comp.Gen.Laws 1927, provides that no tax deed for lands sold for taxes shall issue until the clerk of the circuit court shall have given at least thirty days' previous notice of the application for deed by publishing same once a week in some newspaper in the...
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