Levy v. Ladd

• Decision Date: 15 May 1895
• Parties: LEVY v. LADD et al.
• Court: Florida Supreme Court

17 So. 635

35 Fla. 391

LEVY v. LADD et al.

Florida Supreme Court

May 15, 1895

Appeal from circuit court, Alachua county; J. J. Finley, Judge.

Action by William H. Levy against George W. Ladd and others. Defendants had decree, and plaintiff appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. He who comes into equity to get rid of a legal title as a cloud upon his own must show clearly the validity of his own title and the invalidity of his opponent's. Equity will not act in such cases in the event of a doubtful title; and a party to be relieved and to succeed in contests of this character must do so on the strength of his own title, and not on the weakness of his adversary's.

2. The well-settled rule is that, where the title of a party to land is legal in its nature, he must be in possession of the land before he can claim the aid of a court of equity to remove a cloud from his title, unless the land is wild, unimproved and unoccupied.

3. Where there is a material variance between the description of the land in a tax deed and the description given to it in the assessment roll and in the collector's advertisement of it for tax sale and in his certificate of tax sale and purchase, such tax deed is void.

4. Where several tracts or parcels of land are assessed and sold for taxes, and the amount of taxes assessed upon each of said tracts is not set down or given opposite thereto respectively, in the assessment roll and in the collector's advertisement of sale, but the aggregated taxes assessed on all the different tracts is given only, a tax deed predicated thereon is void.

COUNSEL S. Y. Finley, for appellant.

W. W Hampton, for appellees.

OPINION

TAYLOR, J.

The appellant, Willie H. Levy, filed his bill in equity in the circuit court of Alachua county on the 25th day of July, A. D. 1887, against the appellees, alleging therein 'that George W. Ladd was a resident of the state of Maine; that on the 5th day of May, 1884, divers fractional subdivisions of sections 11, 12, 2, and 3 in township 7 S., of range 18 E in Alachua county, Fla., were sold by the collector of revenue for Alachua county at public auction for the unpaid taxes thereon for the year A. D. 1883, regularly and lawfully assessed according to law, to the state of Florida, there being no bidders for the same at said sale; that, at the time of the assessment and sale of said lands for said taxes, the defendants Daniel S. Ladd and G. W. Ladd, brothers, residing in Franklin county, Fla., claimed the ownership in fee of said lands; that on the 15th day of April, 1886, he (the complainant) purchased from the state of Florida all the right, title, and interest of the state in and to said lands, as will more fully appear by reference to the tax deed of said state to your orator, which said tax deed was duly recorded at page 301 of Tax-Title Book B, in the public records of Alachua county, Fla., on the 15th day of April, 1886, a certified copy of which said deed is attached to the bill as an exhibit thereto and as part thereof; that at all times since the said 15th day of April, 1886, he has been, and is now, in possession of said land; that in May, 1886, the defendant George W. Ladd wrongfully and unlawfully caused a levy to be made upon said lands under and by virtue of an execution issued out of the circuit court of the United States for the Northern district of Florida, upon a pretended final judgment of said court in favor of the said George W. Ladd, and against one Daniel Ladd, deceased, the date of said pretended judgment being October 4, 1869; that, by reason of said levy as aforesaid, the United States marshal for said Northern district of Florida did on the 7th day of June, 1886, wrongfully and unlawfully, and against the protest of your orator, sell said lands, in regular form of law, to the defendant George W. Ladd, and on the 18th day of June, 1886, executed his deed in pursuance of said pretended sale to the defendant George W. Ladd, and the same was regularly recorded in the public records of Alachua county in Book Z of Deeds, at page 32, a certified copy of which is attached to the bill as an exhibit; that said marshal's deed to the defendant George W. Ladd is regular upon its face; and that the same is a cloud upon the title of your orator to said lands; and that he has no adequate remedy at law in the premises.' The prayers of the bill are that so much of said United States marshal's deed as relates to and affects the lands purchased by complainant from the state be adjudged and decreed to be void, and of no force or effect; that complainant be adjudged and decreed to have a good and perfect title to said lands as against the defendants; and that the claims of the defendants therein be forever barred. There are, besides, the prayer for general relief and for subpoena.

Attached to the bill is the tax deed to said lands issued by the clerk of the circuit court of Alachua county to the complainant, dated April 15, 1886, that recites that the lands were sold by the collector to the state of Florida on May 5, 1884, for the taxes assessed for the year 1883, and that the complainant had purchased the right, title, and interest of the state by paying to the comptroller the sum of $30. Attached also to the bill is a deed from the United States marshal for the Northern district of Florida conveying the said lands to the defendant George W. Ladd, which deed is in due form, and dated June 18, 1886, and recites that it is made by such marshal in pursuance of and by virtue of a sale of said lands by him under an execution issued out of the circuit court of the United States for the Northern district of Florida, dated the 14th day of October, 1869, in favor of George W. Ladd, against one Daniel Ladd.

The defendant George W. Ladd filed an original and amended answer to the bill, in which he admits that he is a resident of the state of Maine. He admits the sale of the lands by the collector of revenue for the taxes assessed thereon for the year 1883, but denies that said taxes were lawful, or were lawfully assessed. He admits that the complainant did on the 15th day of April, 1886, attempt to purchase the right, title, and interest of the state in and to said lands acquired under said illegal sale of 1884 for taxes of 1883, and that the comptroller attempted to make said transfer, and that the certificate by the collector of revenue (No. 83) to the comptroller was attempted to be transferred to him by the comptroller, and that a deed was issued to the complainant by the clerk of the circuit court for Alachua county as alleged; but, the answer charges, the said transfer by the comptroller was and is unauthorized, and in violation of the statutes of Florida, and that the said deed predicated thereon is illegal and void. He denies that the complainant has at all times since the 15th day of April, 1886, been in possession of said lands, but asserts, on the contrary, that he has never at any time been in the actual possession of said property, or any part thereof. The levy upon the lands under a judgment rendered in the United States court in favor of George W. Ladd against Daniel Ladd on the 4th day of October, 1869, by the United States marshal, and the sale, purchase, and conveyance thereof by him at such marshal's sale, are admitted. The answer alleges that the said judgment rendered on the 4th of October, 1869, in the United, states court, under which said land was sold, was in all respects regular and a valid lien upon said lands, that at that time were owned and possessed by Daniel Ladd, the defendant in said judgment, and that the execution issued therefrom, and the said marshal's sale thereunder, were in all respects legal and regular; and alleges that he (the defendant) was on the 25th day of July, 1887, and is now, in the lawful possession of said lands. The amended answer alleges the assessment of said lands made in 1883 to be unlawful and void because the lands were assessed to a firm of persons that did not exist, and who, at the date of said assessment, neither owned said land, nor were in possession or occupancy thereof; that the said sale of said lands was illegal and void because the same were not advertised for sale in conformity to section 48, c. 3413, Laws Fla.; that the said lands, though embraced in several different sections, were all sold in a body, and were so advertised, and the said collector did not make out a statement of all such real estate specifying the amount due on each parcel, as required by section 48 of said chapter 3413.

Replication to the answer as amended was filed, and the cause was referred to a master, to take testimony and report the same to the court. After the testimony was all taken, and reported to the court, a final hearing was had, at which the court rendered a final decree dismissing the complainant's bill, at his costs of the suit, and from this decree the complainant appeals.

The errors assigned are that the decree is contrary to law and equity, and is not sustained by the evidence, and because no sufficient defense to complainant's suit is shown in the record.

As proof of his title to the lands, the complainant introduced a certified copy of the tax deed made to him by the clerk. To sustain the allegation of his possession of the land, the complainant testified: That he resided in Newnansville, in Alachua county, Fla. That he purchased the lands in April 1886, and soon after the purchase, and before the commencement of...