Lyon Co. v. Phoenix Tax Title Corp.

• Decision Date: 19 November 1936
• Citation: 170 So. 746,126 Fla. 243
• Parties: LYON CO. v. PHOENIX TAX TITLE CORPORATION.
• Court: Florida Supreme Court

170 So. 746

126 Fla. 243

LYON CO. v. PHOENIX TAX TITLE CORPORATION.

Florida Supreme Court, Division B.

November 19, 1936

Rehearing Denied Dec. 11, 1936.

Suit by the Phoenix Tax Title Corporation against the Lyon Company. From an order overruling a motion to dismiss, the defendant appeals.

Order affirmed.

BROWN J., dissenting. Appeal from Circuit Court Pasco County; John I. Viney, judge.

COUNSEL

McMullen & Draper, of Tampa, for appellant.

Erle B Askew and Osmond R. Bie, both of St. Petersburg, for appellee.

OPINION

PER CURIAM.

Appellee filed suit in circuit court to foreclose tax certificates assigned to him under provisions of section 42 of chapter 14572, Acts 1929 (Ex.Sess.).

The appellant filed motion to dismiss, which motion was overruled. Appellant contends that where the clerk of the circuit court of Pasco county caused to be published on the 29th day of May, 1931, a notice reciting that on June 1 1931, and thereafter, competitive bids would be received by him for the sale of state tax certificates issued pursuant to sale for the unpaid taxes assessed for the year 1927 and previous years under the provisions of chapter 14572, Acts 1929 (Ex.Sess.), and the notice contains the language, 'for State Tax Certificates sold for taxes for the year 1927 and previous years,' that such notice should be construed to confine any sales of tax certificates made pursuant thereto by the clerk of the circuit court to only such tax certificates as had been issued upon the sale for nonpayment of taxes for the year 1927 and previous years.

It is further contended that the tax certificates involved in this suit and covering the property owned by the appellant were issued upon the sale of such lands for the unpaid taxes of 1928 or for the unpaid taxes for the years subsequent to that date, and that the clerk of the circuit court was without authority of law to assign such tax sale certificates to the complainant. These contentions are attempted to be presented by motion to dismiss.

We feel that it is unnecessary to add what has heretofore been said by this court in regard to principles which control the disposition of this appeal.

In State ex rel. Ranger Realty Co. v. J. N. Lummus, etc., 111 Fla. 746, 149 So. 650, 652, we said:

'The statute in this particular is nothing more than a Legislative act declaratory of the rule of law that would apply if there were no statute, since the jurisdictional notice to the taxpayer that his land is about to be taken from him for his tax delinquency is, under the present tax system we have in this state, that which is required to be given by publication as a condition precedent to the issuance of a tax deed by the clerk of the circuit court. Notice of the tax sale itself is simply a statutory regulation of the subject. It is designed more to produce buyers at the sale for the benefit of the state's revenues than it is to protect any right of the delinquent taxpayer, since the delinquent taxpayer can lose nothing through the mere issuance of a tax sale certificate on his land. This is so, because the tax sale certificate after issuance must be held for at least two years, during which time the taxpayer has open to him all the processes of the courts by which to challenge its validity, if invalid, as well as the opportunity to redeem his land from it, if valid.'

In Southwest Enterprises, Inc. v. Frasse, 113 Fla. 770, 152 So. 175, we said:

'If the city violated any legal principle in assigning the certificates to complainant in foreclosure for an insufficient consideration, that ground of objection was not available to the delinquent defendant whose liability to the city for the amount of the taxes, as assessed and embraced in the tax certificates foreclosed, was not successfully refuted by any pleading or proof contra. The remedy for an alleged illegal assignment of a tax certificate of a municipality without lawful consideration is an injunction against the assignment, or an action by taxpayers to rescind it in the municipality's behalf and charging the assignee with liability for an accounting...