Lee v. Walter-keogh, Inc.

• Decision Date: 19 April 1932
• Citation: 105 Fla. 199,141 So. 131
• Court: Florida Supreme Court
• Parties: LEE v. WALTER-KEOGH, Inc., et al.

141 So. 131

105 Fla. 199

LEE v. WALTER-KEOGH, Inc., et al.

Florida Supreme Court

April 19, 1932

Suit by D. Lee against Walter-Keogh, Inc., and others. The court struck a portion of the bill of complaint, and complainant appeals.

Reversed.

ELLIS and BROWN, JJ., dissenting. Appeal from Circuit Court, Palm Beach County; C. E. Chillingworth, judge.

COUNSEL

Joe Hatfield, of West Palm Beach, for appellant.

O. E Falls, of West Palm Beach, for appellees.

OPINION

WHITFIELD J.

A party owning a state and county tax sale certificate and also municipal tax sale certificates brought suit in the circuit court under chapter 14572, Acts of 1929, Ex. Sess., to foreclose the liens of both classes of certificates. Parties claiming an interest in the land were made defendants. The court struck the portion of the bill of complaint which includes the municipal tax certificates, upon motion the grounds of which are that municipal tax liens cannot be foreclosed under chapter 14572, and that municipal tax liens cannot legally be foreclosed in the circuit court. Complainant appealed. Even if equity has not inherent power to enforce tax liens, 37 Cyc. 1242, Section 5034(3228) Compiled General Laws 1927, provides:

'All liens of any kind, whether created by statute or the common law, and whether heretofore regarded as merely possessory or not, may be enforced by proceedings in chancery.'

The statutes also contain the following:

'All real and personal property shall be subject to taxation on the first day of January of each year, and this Chapter shall create a lien upon such property for the purposes thereof superior to all others, which lien in addition to the provisions of this Chapter for the collection of the taxes on personal property may be enforced by suit in equity.' Section 896(696), Comp. Gen. Laws 1927.

'The city or town council shall have power to raise, by tax and assessment upon all real and personal property, and by license on professions, business and occupations carried on within the corporation, all sums of money which may be required for the improvement and good government of the city, and for carrying out the powers and duties herein granted and imposed; and to enforce the receipt and collection of the same in the manner now provided by the laws of the State for the assessment and collection of State taxes and licenses.' Section 3000(1890), Comp. Gen. Laws 1927.

The statutes authorize tax sale certificates which are liens for taxes to be transferred to private parties. Administrative deeds conveying lands for nonpayment of taxes are by statute required to contain the following:

'Provided, however, that said land shall continue subject and liable for any unpaid taxes thereon.' Section 1003(779) Comp. Gen. Laws, 1927.

See, also, Pookel v. Dowling, 101 Fla. 1171, 132 So. 836.

In order to pass a good title for nonpayment of taxes, chapter 14572, Acts of 1929, Ex. Sess., authorized any holder of a certificate of tax sale or a tax deed to foreclose in chancery 'the lien of such certificate or deed, and the practice, pleading and procedure for foreclosure shall be in accordance with the practice, pleading and procedure for foreclosure of mortgages on real estate, execpt as herein otherwise provided and except that no personal judgment shall be given.' Section 13.

'In suits brought on tax sale certificates or deeds held by the State of Florida, or any individual or corporation, as many tax sale certificates and/or deeds on lands in the same county may be included in one suit as the complainant may desire and as many parties may be made defendant as may be necessary. All those having or claiming any interest in any lands embraced in any of such tax sale certificates or deeds, by reason of ownership, lien or otherwise, may be made parties to such suits, and personal service of process and constructive service by publication shall be made in accordance with the law applicable to the foreclosure of mortgages upon real estate unless otherwise herein provided.' Section 15.

The 'decree shall have the force and effect of a decree foreclosing a mortgage on real estate.' Section 23.

'The purchaser at any sale in suits for the foreclosure of tax certificates or deeds shall be entitled to a deed and the same process and remedies to obtain possession of the premises as in suits for the foreclosure of mortgages. The title to the land conveyed by such deed shall be indefeasible as to all parties defendant in the action.' Section 28.

A purpose of chapter 14572 being to enable the holder of a tax sale certificate or a tax deed to procure a good title by foreclosure of the tax lien, the effect of the statutory provisions, taken with the general powers of a court of chancery, is to authorize all tax liens to be adjudicated in a foreclosure suit under chapter 14572, so that title to the land conveyed by foreclosure decree and sale 'shall be indefeasible.'

The holding here does not conflict with State ex rel. Dofnos Corp. v. Lehman, 100 Fla. 1401, 131 So. 333. While it was said in that case that chapter 10040, Acts of 1925, and chapter 14572, Acts of 1929, Ex. Sess 'apply to state and county taxes and have no relation whatever to municipal taxes or...