Mccord v. Lee

• Decision Date: 10 February 1937
• Citation: 127 Fla. 65,172 So. 853
• Court: Florida Supreme Court
• Parties: McCORD v. LEE et al.

172 So. 853

127 Fla. 65

McCORD v. LEE et al.

Florida Supreme Court

February 10, 1937

Rehearing Denied March 10, 1937.

Suit between Cecil A. McCord and D. Lee and another. From the decree, Cecil A. McCord appeals.

Affirmed. Appeal from Circuit Court, Hillsborough County L. L. Parks, judge.

COUNSEL

Cecil A. McCord, in pro. per.

Edwin Brobston, of Tampa, for appellee.

OPINION

PER CURIAM.

In this cause Mr. Chief Justice ELLIS and Mr. Justice TERRELL and Mr Justice BUFORD are of the opinion that the decree of the circuit court should be redecree for further appropriate proceedings, while Mr. Justice WHITFIELD, Mr. Justice BROWN and Mr. Justice DAVIS are of the opinion that the decree should be affirmed. When the members of the Supreme Court sitting six members in a body, and after full consultation it appears that the members of the court are permanently and equally divided in opinion as to whether the said decree should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the court, the decree should be affirmed; therefore it is considered, ordered, and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the decree of the circuit court in this cause be, and the same is hereby, affirmed.

Affirmed.

ELLIS, C.J., and WHITFIELD, TERREL, BROWN, BUFORD, and DAVIS, JJ., concur.

DISSENTING

ELLIS, Chief Justice (specially concurring).

It is a general rule of equity pleading that all persons who are materially interested in the event of the suit should be made parties either complainant or defendant. The reason of the rule lies in public policy enforced in courts of equity that a decree should finally and completely determine the rights which all persons have in the subject matter decided so that the parties may safely obey and act upon the decree and the multiplicity of suits or a circuity of proceedings may be avoided. 15 Ency. Pleading and Practice, 584.

That rule is so generally recognized and observed that it is useless to cite further authority in support of it.

The statute law of this state recognizes the principle as applicable to civil actions at law providing that the real party in interest may at all times be substituted for the person who brings the action for the use of another. See section 4201, C.G.L. 1927.

In equity it has been definitely held by this court that, where a complainant is not interested in the subject matter of the suit, he has no locus standi and the bill is demurrable. Murrell v. Peterson, 57 Fla. 480, 49 So. 31; Bridger v. Thrasher, 22 Fla. 383.

From anything appearing to the contrary in the allegations of the bill, the complainant D. Lee is a proper and necessary party, so the bill will not be demurrable, but the issue as to his or her right to a standing in equity is definitely presented by the following averment in the amended answer: 'These defendants are without knowledge as to the existence of the complaint, D. Lee, and are without knowledge that D. Lee has a Solicitor authorized to represent him, or her, and assert that they have been informed and believe that the alleged, D. Lee, is acting in this matter as an agent for an undisclosed principal.'

The burden is upon the complainant, when his or her right to maintain the bill by reason of being the real party in interest is presented, to establish his or her right to the subject matter of the controversy. This the evidence wholly fails to do, and no decree therefore could be made binding upon the parties who were the real owners of the certificate or certificates, if indeed there are any such.

I am therefore of the opinion that the decree appealed from should be reversed.

DISSENTING

BUFORD Justice.

This is a case where the appellant, McCord, was defendant in a suit for the foreclosure of certain tax liens based on certain tax certificates.

McCord was a layman and was not represented by counsel. He prepared his own answer. In that answer, amongst other things, he alleged:

'These defendants are without knowledge as to the existence of the complainant, D. Lee, and are without knowledge that D. Lee has a solicitor authorized to represent him, or her, and assert that they have been informed and believe that the alleged D. Lee is acting in this matter as an agent of an undisclosed principal.'

The answer alleged that the certificates sought to be foreclosed were null and void and that in the assessment for the year the taxes for which the land was sold the assessment made by the tax assessor was arbitrarily, intentionally, and consistently unfair and in such assessment relative values of property similarly situated were disregarded; that is, that in the assessment of the property involved for the year 1927 the tax assessor 'intentionally, arbitrarily and systematically overvalued the property described in the bill of complaint as compared with other properties in the same class, and the said Board of County Commissioners, sitting as a Board of Equalization, deliberately, intentionally and arbitrarily sustained said assessments which they knew or should have known to be unjust, unequal and discriminatory, and that as a result thereof said property was assessed at more than its proportionate share of the value of the properties of the county, and the tax as levied against said property, if paid, would result in said property bearing an unequal portion of the tax burden of said County and State. That said action on the part of the Tax Assessor and said Board of County Commissioners sitting as a Board of Equalization, in making said assessment and in omitting and failing to make assessments as hereinabove alleged, deprived these defendants of the equal protection of the law guaranteed by the Constitution of the United States and State of Florida, and will deprive these defendants of their property without due process of law as provided by the Constitution of the United States and State of Florida.'

The defendant alleged:

'That we are ready and willing and hereby offer to pay all taxes legally and regularly levied against said property for the year 1927, and for all subsequent years but have made no actual tender of money in payment of said taxes and are unable to make such tender because of impossibility of determining the amount of tax for said years which defendants should pay on their property herein described by reason of the illegal and discriminatory acts of the Tax Officials for Hillsborough County, and hereby offer to do equity by paying the portion of said taxes against said property that may be decreed to be legally and validly due and regularly and legally assessed or levied.'

No sufficient objection having been made to the answer and the complainants having accepted the issue that D. Lee was the agent of the real owner of the certificates involved, and having attempted to prove the existence of the said D. Lee, we are called upon to determine whether or not the record discloses that D. Lee is the real party at interest having the right to maintain this suit. The record entirely fails to establish that fact. The logical conclusion which must be drawn from the record is that D. Lee is at best a dummy holding the certificates involved in this case in trust for a corporation located in Chicago, Ill., if in fact there is in existence any such person as D. Lee; that such corporation is actually doing business in Florida and evading the statutes requiring qualification here.

The special master reported in part as follows:

'No evidence was introduced by defendants, all of which was on objection ruled out, but which is submitted, which changes my opinion as to the facts, except the Tax Levy, by both State and County as well as the City of Tampa, and the Tax Levy or Millage, the sum total being approximately Five Hundred Dollars per annum, amounts to nothing less than confiscation of defendant's property, it being adduced in evidence that he could not sell said property so taxed at any time since the bursting of the boom at more than a Thousand Dollars; however, this may be, the evidence disclosed that defendants made no complaint to the Tax Assessor, City or County, or the Boards of Tax Equalizers at any time during the last six years.'

If this finding of the master is correct, and the record amply supports it, the assessments levied on the appellant's land were unjust and confiscatory and should not be sustained. The one certificate which was issued at the sale of 192...