De Loach v. Calihan

• Decision Date: 21 March 1947
• Citation: 30 So.2d 910,158 Fla. 639
• Parties: DE LOACH et al. v. CALIHAN.
• Court: Florida Supreme Court

30 So.2d 910

158 Fla. 639

DE LOACH et al. v. CALIHAN.

Florida Supreme Court

March 21, 1947

On Rehearing June 24, 1947.

Knowles & Kirk, of Brandenton, and Henderson, Franklin, Starnes & Holt, of Fort Myers, for petitioners.

Robert E Willis and Dewey A. Dye, both of Bradenton, for respondent.

TERRELL, Justice.

On May 14, 1938 Lynn C. Calihan purchased Lot 8, Block C of High School Addition to the City of Manatee, Florida. He did not pay the taxes on this property, so tax certificate No. 1308 was issued against it July 7, 1941. Calihan enlisted in the Armed Forces November 17, 1943. January 3, 1944, tax deed was issued to Atlantic Muncipal Corporation on the basis of said certificate. April 2, 1945, Atlantic Muncipal Corporation conveyed the said lot to A. K. Hawkins, who in turn, five days later, conveyed it to Barney H. DeLoach.

Calihan was discharged from the Armed Forces February 3, 1946, and on May 2, following, instituted this suit in chancery alleging that on account of being in the Armed services 'at the time of the application for and issuance of such purported tax deed and other purported deeds heretofore set out, the said purported tax deed and other purported deeds are voidable and complainant is entitled to their cancellation.' The bill prayed for cancellation of the deeds and an accounting for rents received during the occupancy of the lands. A motion to dismiss was denied and that order is here for review on certiorari.

The chancellor denied the motion to dismiss on authority of 50 U.S.C.A.Appendix, § 525, Soldiers' and Sailors' Civil Relief Act, the pertinent part of which is as follows 'nor shall any part of such period which occurs after the date of enactment of the Soldiers' and Sailors' Civil Relief Act Amendments of 1942 be included in computing any period now or hereafter provided by any law for the redemption of real property sold or forfeited to enforce any obligation, tax or assessment.'

The chancellor supported his order overruling the motion to dismiss by Illinois National Bank of Springfield v. Gwinn, 390 Ill. 345 61 N.E.2d 249.

Petitioners counter with the contention that respondent has not brought himself within the protection of 50 U.S.C.A.Appendix, § 560, Soldiers' and Sailors' Civil Relief Act, the pertinent part of which is as follows: '(1) The provisions of this section shall apply when any taxes or assessments, whether general or special (other than taxes on income), whether falling due prior to or during the period of military service, in respect of personal property, money, or credits, or real property owned and occupied for dwelling, professional, business, or agricultural purposes by a person in military service or his dependents at the commencement of his period of military service and still so occupied by his dependents or employees are not paid.'

In the Illinois case cited and relied on by the chancellor, the Court held that the provisions of Section 525, Soldiers' and Sailors' Civil Relief Act, were written into the State statute and extended the period for redemption to those in the Armed services so long as they were in the service.

Petitioners contend on the contrary that the law in effect at the time the tax certificate was issued controls the issuance of the tax deed that the Soldiers' and Sailors' Civil Relief Act was passed after the issuance of the tax certificate in question and should not be construed as modifying the...