Locke v. Stuart
| Decision Date | 11 June 1959 |
| Docket Number | No. B-78,B-78 |
| Citation | 113 So.2d 402 |
| Parties | F. B. LOCKE and Audrey L. Locke, and Jack Haigler, Appellants, v. Erika STUART, Appellee. |
| Court | Florida District Court of Appeals |
S. M. Preacher, De Funiak Springs, for appellants.
Roll & Wimberly, Fort Walton, for appellee.
The complaint in this ejectment suit and the proofs submitted in support of plaintiff's motion for the summary judgment, granting of which prompted this appeal, show that plaintiff's unbroken record title originates in a deed prior in date and recordation to a tax deed which the defendant-appellants filed in evidence in resistance of the motion for summary judgment and rely upon as creating a superior title to that of the plaintiff-appellee.
Plaintiff's affidavit in support of the motion reflects that she and her former husband formerly owned the land jointly, that she acquired the whole interest as part of a property settlement connected with their divorce, that she did not receive notice from the Clerk of the Circuit Court or from any other person that the property was being or would be advertised and sold for taxes, that she did not receive notice of application for the tax deed in question and did not know that there were any taxes owing or delinquent on the property. The uncontradicted supporting affidavit of the Clerk of the Circuit Court of the county in which the land lies shows: that according to the public records of that county the title to the property was in plaintiff's name at the time the application for tax deed was made, that notice of the application was not mailed or given to plaintiff, to the former owners of the property, or to the municipality in which the property was located, and that he failed to execute and attach to the proof of publication of the notice and advertisement for sale a certificate to the effect that the address of the person last paying taxes upon the land was not shown by the tax collector's receipt book.
The only proof submitted by defendants in opposition to the motion is the affidavit of F. B. Locke to the effect that he and his wife had come into possession of the property in a 'lawful' manner by virtue of the subject tax deed.
The appellants contend that the statutory presumption to the effect that 'all [tax] deeds shall be prima facie evidence of the regularity of all proceedings' leading up to their issuance (Sec. 194.24, F.S., F.S.A.; see also Sec. 92.24, F.S., F.S.A.) is such that a material and controverted issue of fact was raised by their simple act of filing the tax deed in opposition to the motion for summary judgment, thus precluding its entry. The trial court granted plaintiff's motion for summary judgment on the premise that the affidavit of the clerk admitting he had not complied with certain statutory requirements prerequisite to the issuance of a valid tax deed was a 'sufficient showing to overcome the prima facie case of regularity in the proceedings leading up to the issuance of the tax deed.'
The statutory requirements relating to notice as set out by Section 194.18, F.S., F.S.A., are mandatory and jurisdictional. Failure of the clerk to comply with them renders the tax deed void. Since it was shown without contradiction that the clerk failed to give notice as required by the statute, it follows that there was no issue of fact for determination by a jury. See Wells v. Thomas, Fla., 78 So.2d 378; Montgomery v. Gipson, Fla., 69 So.2d 305; Swigert v. Parker, Fla., 46 So.2d 16; Heinberg v. Andress, Fla., 45 So.2d 488, and Ozark Corp. v. Pattishall, 135 Fla. 610, 185 So. 333. The question remains, of what aid is a legal presumption to a party who is confronted with a motion for summary judgment and who relies on the tax deed as his sole prood?
There are several types of presumptions with varying effects and logically the same reasons that apply to their use at trial governs their use at the summary judgment hearing. See Moore's Fed. Pract., Vol. 6, § 56.11(10). Presumptions of law merely assist the party entitled to the benefit thereof by relieving him of the necessity at the outset of establishing the existence of the basic facts giving rise to the presumption. The prevailing rule is to the effect that when evidence is introduced rebutting any of such basic facts, the presumption vanishes and the party who relied on it is then put to the burden of producing evidence sufficient to overcome that which operated to destroy the presumption. Thus in Florida the presumption is regarded as a preliminary 'rule of law' which may be made to disappear in the face of rebuttal evidence but which, in the absence thereof, compels a decision in favor of the one who relies on it. Davis v. Loftin, Fla., 75 So.2d 813; Leonetti v. Boone, Fla., 74 So.2d 551; Johnson v. Mills, Fla., 37 So.2d 906. 1
The presumption under Sec. 194.24, F.S., F.S.A., operates in respect to each of the statutory requirements preliminary to the issuance of a valid tax deed. Where on motion of the holder of the tax title for summary judgment evidence is presented by the adverse party that has the effect of destroying the presumption of regularity attending one or more of the conditions precedent to the issuance of a valid tax deed, the summary judgment cannot be entered. It is elemental, of course, that the statutory presumption of regularity continues to attend in respect to those conditions precedent that are not challenged by the pleadings and proofs of one claiming against the tax title.
We are concerned here with a procedural presumption in that by legislative grace the defendants needed only to introduce the tax deed in evidence in order to be spared the necessity of proving that each statutory step leading up to its issuance had been complied with. At that point the burden shifted to the plaintiff to prove the invalidity of the deed. Coult v. McIntosh Inv. Co., 133 Fla. 141, 182 So. 594; Clark v. Cochran, 79 Fla. 788, 85 So. 250. This was met by the uncontradicted affidavits of the plaintiff and the clerk which were sufficient to overcome the prima facie validity of the tax deed. Failure of the defendants to come forward with any proof by way of counteraffidavit or otherwise to show that there was a material issue of fact to be resolved made the entry of the summary judgment proper. See Juniper Mills v....
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