Mckeown v. Collins

• Decision Date: 01 December 1896
• Citation: 38 Fla. 276,21 So. 103
• Parties: McKEOWN v. COLLINS.
• Court: Florida Supreme Court

21 So. 103

38 Fla. 276

McKEOWN v. COLLINS.

Florida Supreme Court

December 1, 1896

Appeal from circuit court, Citrus county; G. B. Sparkman, Judge.

Bill by David Collins against Addison P. McKeown and others. From a decree for complainant, defendant McKeown separately appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where two tracts of land are assessed, one being assessed to a named owner, but the other is not assessed to any owner or occupant, or as unknown, as required by the act (Laws Fla 1883, c. 3413, ss 6, 7), but the valuation of the two tracts are aggregated, and the taxes computed upon such aggregate valuation, such assessment is fatally defective, and a tax deed based upon such an assessment is void.

2. A valid assessment of lands is an essential foundation to proceedings to subject them to sale for nonpayment of taxes.

3. A tax deed upon a void and illegal assessment, and in which the description materially varies from the assessment, is wholly void, and the three-years special statute of limitations (Laws Fla. c. 3413, s 61; Acts 1883, p. 39) would not apply to a suit to set aside such deed, or to recover possession of the lands attempted to be conveyed thereby.

4. Every unpaid indebtedness for purchase money of real estate does not necessarily give to the grantor a vendor's lien.

5. A vendor's lien after conveyance is not a specific absolute charge upon property, but only an equitable right of the vendor to resort to the property in case the purchase money is not paid.

6. A vendor's lien is that lien which in equity is implied to belong to a vendor for the unpaid purchase price of land sold by him, where he has not taken any other lien or security for the same beyond the personal obligation of the purchaser. Such lien is not the result of any agreement between vendor and vendee, but is simply an equity raised by the courts for the benefit of the former.

7. A lien created by express written contract or agreement between the vendor and vendee is not a vendor's lien. It is a security more in the nature of a mortgage.

8. The lien of the vendor on lands for the purchase money is lost in all cases where any security is taken, on the land or otherwise, for the whole or a part of the purchase money unless there is an express agreement to the contrary. That the additional security should prove unavailing does not affect the question. The lien is waived by the taking of the security, because it shows the intention of the vendor not to rely upon his implied equitable lien. This intention is as well shown by an informal act as by one regularly done.

9. A transcription of a mortgage upon the record, without proper proof of the execution of the instrument, is a mere nullity and imports no notice to a subsequent bona fide mortgagee for value.

COUNSEL Angus Paterson, for appellant.

T. M Shackleford, for appellee.

OPINION

LIDDON J.

The appellee filed his bill of complaint in the court below to foreclose a mortgage executed by one R. W. P. Thomas, deceased. The administrator of such deceased mortgagor, his widow, who had joined in the execution in order to bar her right of dower, and the husband with whom she had since intermarried, together with the appellant, were made parties defendant. The appellant was in the possession of the mortgaged premises claiming title thereto, and the bill sought to cancel and annul a tax deed which he claimed to be a valid title to the premises, and to declare that a sheriff's deed, also held by him to a portion of such property, conveyed a title subject to complainant's mortgage. The decree was in favor of the complainant. The other defendants not desiring to appeal, proceedings against them by summons and severance have been had, and the appellant alone prosecutes his separate appeal.

The first question presented by the record is whether the tax title of the appellant was void, so that the special statute of limitations could not be invoked in aid of it. The land involved in such question consists of two tracts, viz. the N.W. 1/4 of N.W. 1/4 of section 1, and the N.E. 1/4 of the N.E. 1/4 of section 2, all in township 21 S., range 19 E., in Citrus county. Among other defects alleged in such tax deed, which was based upon an alleged sale for taxes made after the execution of the mortgage, it is stated, in substance, that, in the assessment book for the year when such taxes were endeavored to be assessed thereon, such assessment was made in the following manner, viz.: On page 116 of the assessment roll, in the column headed 'Names of Taxpayers,' the name of 'Thomas, R. W. P,' appears as the first name in said column, and in the column headed 'Parts of Section,' opposite said name, appear the letters 'N. W. of N. W.' Proper entries were made in the columns headed, respectively, 'Section,' 'Township,' 'Range,' and 'Number of Acres,' as for the assessment of 40 acres of land in section 1 of such township and range. In the second line, in the column headed 'Parts of Section,' appear the letters 'N. E. of N. E.,' and in the columns headed, respectively 'Section,' 'Township,' 'Range,' and 'Number of Acres,' appear proper entries and reference marks for the assessment of 40 acres in section 2 of said township and range. The column headed 'Names of Taxpayers,' the line opposite this latter attempted description of land in section 2 is left entirely blank, containing no mark, word, letter, or character of any kind whatever. The said tract first attempted to be described by the assessor was valued by him at '150,' and the second tract at '100,' there being no dollar mark or other word, mark, figure, or symbol used at the heads of the valuation columns or elsewhere, to indicate what denomination of money was meant or intended by the use of these figures. A certified copy of such page of the assessment rolls was attached as an exhibit to the bill of complaint and made a part thereof, and is here reproduced as follows:

(Image Omitted)

It was further stated in the bill of complaint that the assessor, in the column headed 'Aggregate Value of Real Estate,' appears to have valued the two tracts together at '250,' and the respective taxes were assessed upon this aggregate valuation.

By reason of the foregoing facts, the complainant claimed in his bill of complaint that the second parcel of land, hereinbefore described as being involved in the controversy, and attempted to be described in the second line of said page of said assessment roll, was not, as required by law, assessed either to the owner or occupant, or as 'Unknown,' and that the assessment of both parcels was illegal and void, for the reason that the description and valuation of both of said parcels of land were vague, indefinite, and uncertain, and not in accordance with the statute in such cases made and provided. The bill further states that the tax collector proceeded to advertise such lands, and to sell them in pursuance of said advertisement, on June 7, 1886. The lands were described as the N.W. 1/4 of N.W. 1/4 of section 1, and N.E. 1/4 of N.E. 1/4 of section 2, stating the proper township and range, and that the first tract was assessed to 'Thomas, R. W. P.,' and the second 'Do.,' the aggregate taxes and costs against both parcels being '545.' The said lands were sold under said advertisement at tax sale June 7, 1886, to the defendant Addison P. McKeown. A certificate issued upon this sale, with same description as the advertisement, upon which a tax deed was executed June 10, 1887, and the same was duly recorded. The complainant claims that the tax deed was void for reason of the matters stated.

The answer does not dispute the allegations of the bill as to irregularities and defects in the tax proceedings, but denies that complainant can avail himself of such irregularities and defects, because defendant's tax deed had been recorded more than three years before complainant's suit was brought, and that such suit was barred by the special statute of limitations in such case made and provided, viz. section 61, c. 3413, Laws Fla. (Acts 1883, p. 39). Considerable argument is made as to whether the complainant is a 'former owner, claimant, or assign,' within the meaning of the act, so as to be barred by the terms of the same. Whether he, being a mortgagee of the property, is an assign, in contemplation of the act, is a question about which there seems to be a great scarcity of authority. Brown v. Association, 34 Minn. 545, 26 N.W. 907, citing Nopson v. Horton, 20 Minn. 268 (Gil. 239). It will appear, from what is hereinafter stated, that it is not necessary to decide the question in the present case, and therefore it is left undetermined.

The statute above cited provides, with a saving clause for persons under specified disabilities, that 'no suit or proceeding shall be commenced * * * to set aside any deed made in pursuance of any sale of lands for taxes, or against the grantee in such deed, * * * unless such suit or proceeding be commenced within three years after the recording of such deed in the county where the lands lie.' In the assessment roll herein set forth only letters are used, and no words or numbers are to be found which were necessary, in connection with such letters, to a clear and precise statement of the fractional subdivisions of the respective sections in which the lands were located. The advertisement, certificate, and deed improperly varied from the assessment in inserting words which were necessary, or were deemed by those intrusted with the execution of the tax laws to be necessary, to a correct and accurate description of the land. This variance was, undoubtedly, an irregularity. Whether it was such an irregularity as to render the deed absolutely void, so as to prevent the bar...