Mitchell v. Moore

• Decision Date: 04 May 1943
• Parties: MITCHELL v. MOORE.
• Court: Florida Supreme Court

13 So.2d 314

152 Fla. 843

MITCHELL v. MOORE.

Florida Supreme Court

May 4, 1943

Appeal from Circuit Court, Broward County; George W Tedder, judge.

Charles H Crim, of Fort Lauderdale, for appellant.

Miller & Fitzsimmons, of Fort Lauderdale, for appellee.

BROWN, Justice.

The tax deed here involved conveyed to appellee certain land in Broward County Florida, described as follows: 'Tract 38 Less Road Blk 85, Palm Beach Farms, containing 11.25 acres, more or less.'

In this ejectment suit, brought against the grantee in the tax deed, who had been in actual possession of the land thereunder for several years, the learned trial judge was of the opinion that the description in the tax deed was insufficient, and he refused to admit it in evidence as a muniment of title, but later admitted it as color of title. Our view is that the description was legally sufficient to make the deed admissible as muniment of title, and that the court's error in that regard was harmless error, as the verdict and judgment were in favor of the tax deed holder. However, there is an important question involved here. As we see it, if, as the trial court held, the description was fatally defective then the tax deed was not admissible in evidence even as color of title, either under general principles of law, or under Section 4655 or Section 1020, C.G.L., F.S.A. §§ 95.16, 95.17, 196.06.

To be effective as color of title, an instrument must purport to convey the land involved. Therefore a legally sufficient description of the premises in the instrument relied upon the premises in the necessary. If the description does not identify the land with the degree of certainty essential to ascertain the boundaries and identity of the land, the deed or other instrument lacks one of the first essentials of color of title. Of course, the deed or the instrument offered as color of title may be vitally defective as a conveyance of title because of want of title in the grantor, etc., but if it contains a proper description of the premises, a description by which the property may be identified, it may be relied upon as color of title, See 1 Am.Jur. 906, Sec. 203 and numerous cases cited thereunder. Among the cases cited is the case of Brannan v. Henry, 142 Ala. 698, 39 So. 92, 93, 110 Am.St.Rep. 55. That was a case involving a tax deed and in the opinion of the Alabama Supreme Court it was said: 'The insistence of the appellant is that a deed may be void, any yet be admissible in evidence to show color of title. This insistence is amply supported by authority, and many of the deeds which have been held by this court to operate as color of title were void tax deeds. [Citing numerous cases.] The above rule, it seems, is subject to this qualification: that, if the deed offered is void because of the uncertain and indefinite description of the land conveyed, such a deed would not convey color of title, and possession under it would be limited to 'possessio pedis.' This exception is supported by reason and authority. Black v. Tennessee Coal, Iron & R. Co., 93 Ala. 109, 9 So. 537; Louisville & N. R. Co. v. Boykin, 76 Ala. [560], 566.'

Our court reached practically the same conclusion in Day v. Benesh, 104 Fla. 58, 139 So. 448.

It might be noted that the language of Section 1020, C.G.L., is in line with the authorities above cited. That Section begins as follows: 'When the holder of a tax deed goes into actual possession, occupancy and use of the land embraced in such tax deed, and so continues for a period of four years, no suit for the recovery of the possession thereof shall be brought by a former owner or other adverse claimant,' etc. Nor is there anything in Section 4655, C.G.L. which is in conflict with the above authorities. Indeed the language of that section refers to color of title in this language: 'upon a written instrument as being a conveyance of the premises in question, or upon the decree of judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree or judgment for seven years, the premises so included shall be deemed to have been held adversely;' etc. (Italics supplied.)

But we do not think the description in this tax deed is void for uncertainty. The cases of Brickell v. Palbicke, 123 Fla. 508, 167 So. 44; Ranger Realty Co. v. Hefty, 112 Fla. 654, 152 So. 439; and Brickell v. Graves Inv. Co., 150 Fla. 785, 9 So.2d 733, are not, in our opinion, in point here. There is a vital difference in the descriptions involved. And in the case of Dixon v. City of Cocoa, 106 Fla. 855, 143 So. 748, the description contained in a bill to enforce a tax lien was merely this: 'All of lot 6, Robert Dixon's Homestead, ex. to E. C. Johnson and Fairview Land Co.' This description was held insufficient and void, and we think correctly so. The case of Newsom v. Belle Mead Development Corp. 131 Fla. 143, 179 So. 160, dealt with another description in a tax deed which was inherently defective, and so much so that it could not be aided even when applied to extrinsic facts. The holding that the description in the tax deed was fatally insufficient was based upon a well considered opinion by the present Chief Justice. In the case of Schouten v. Hunt, 146 Fla. 360, 200 So. 923, the description in the tax deed there involved merely referred to; 'Tract 5 in Section 25, Township 53 South of Range 40 East, containing 10 acres, more or less.' There was no reference by name or otherwise to any plat, so as to explain what 'Tract 5' referred to, and the government survey did not show any such tract. This description was held insufficient and in the opinion of Mr. Justice Adams in that case it was said that: 'The description of property in a tax deed must be certain in itself or at least capable of being made certain by matters referred to in the deed itself as relating to the description,' etc. The case of Smythe v. City of Bradenton, 148 Fla. 461, 4 So.2d 694, 695, gave a somewhat more liberal interpretation of a description of an assessment on a municipal assessment roll. The appeal in that case was from a decree foreclosing certain tax liens based on assessments as shown by the City assessment roll, which decree was affirmed. The description was: 'City of Bradenton, Florida, Real Property Assessment. Description of lands in Section _____ Township 34 South Range 17 East, Lots 1, 2, 3, Blk A, of Smith's Add. and fill on N. to Blvd.' That was not an ejectment suit, and furthermore the court held that the defendant himself, in propounding a certain question to a witness, identified the property by that description.

In the case of Day v. Benesh, 104 Fla. 58, 139 So. 448, 450, this court upheld as being sufficient the following description in a tax deed; 'Situated and being in the county and state aforesaid, and described as Lot 10, Block 207 Lake Worth containing _____ acres more or less.'

The former parts of the deed preceding the above description alleged that the property was situated in Palm Beach County, State of Florida.

Both the bill and the answer in that case described the property as 'Lot ten (10) in Block two hundred and seven (207) of the Townsite of Lucerne (now known as Lake Worth) according to plat thereof on file in the office of the Clerk of the Circuit Court,' etc.

The opinion of the court in that case was prepared by Commissioner Andrews, now United States Senator Andrews, and was concurred in by all the members of this court. In the opinion it is said: 'There is no reference in the tax deed to any recorded map or plat, but the description does indicate that the land is included in a survey as it is designated as 'Lot 10 Block 207, Lake Worth' in Palm Beach county, Fla., and the same as the former townsite of Lucerne.' There was evidence in the case showing that the former townsite of Lucerne was then known as Lake Worth. In a well considered opinion this court arrived at its conclusion that the description was sufficient and upheld the validity of the tax deed.

It will be noted that the description in that case and in the case now before us are quite similar. In that case the description was 'Lot 10, Block 207 Lake Worth containing _____ ...