Mundee v. Freeman

• Decision Date: 11 November 1887
• Citation: 23 Fla. 529,3 So. 153
• Court: Florida Supreme Court
• Parties: MUNDEE v. FREEMAN.

3 So. 153

23 Fla. 529

MUNDEE v. FREEMAN.

Florida Supreme Court

November 11, 1887

Error to circuit court, Marion county; RICHARD McCONATHY, Referee.

Alice Mundee, the plaintiff in error, sued Frederick K. Freeman the defendant in error, April 20, 1885, in an action of ejectment, to recover the w 1/2 of the N.E. 1/4 of section 2 township 15 S., range 23 E., situate in Marion county, and containing about 80 acres. The defendant pleaded not guilty and the cause was referred to RICHARD McCONATHY, Esq., for trial under the referee statute. A motion for a new trial having been made by the plaintiff, and granted, there was a second trial. The result of the second trial was a judgment in favor of the defendant, and a refusal of both a motion made by the plaintiff for a new trial and for a rehearing of such motion.

The plaintiff put in evidence a deed of conveyance of said land to her from the trustees of the internal improvement fund of this state, bearing date May 14, 1883, which deed appears to have been filed in the clerk's office of Marion county for record on September 23, 1884, and is certified by the clerk, under date of October 1st of same year, to have been recorded. The defendant introduced in evidence a copy of a receipt of the treasurer of said trustees, certified by the commissioner of lands and immigration, which receipt is in the following words and figures:

'Treasurer's Receipt. 6,023.

'No. 587.

TREASURER'S OFFICE, TALLAHASSEE, FLA.

'September 15, 1870.

'Received from Alice Mundee the sum of ninety-four 65-100 dollars for the purchase of the west half of the north-east quarter of section two, township 15 south, range 23 east, I. I., containing 75.72 acres, at $1.25 per acre.

'$94.65.

S. B. CONOVER,

'Treasurer Board Trustees Internal Improvement Fund.'

He also put in evidence a deed from W. H. LeCain, county clerk of Marion county, dated April 1, 1874, to James Harris, which deed was recorded in the clerk's office of Marion county April 27, 1876, on affidavit of one of the subscribing witnesses made before the clerk who executed the deed. The other facts are stated in the opinion.

Syllabus by the Court

SYLLABUS

A tax deed of land sold under the revenue act of 1872, c. 1887, for taxes assessed in 1871, under the general revenue law of 1869, c. 1713, is prima facie evidence that the assessment was lawfully made, and that a warrant was annexed to the copy of the assessment roll delivered to the collector of revenue.

The execution of a tax deed, made by a clerk of the circuit court, was proved by affidavit of one of the subscribing witnesses thereto before the same clerk, and the deed was recorded on this proof in the records of the clerk's office. Held, the record is legal.

What remained of the assessment roll, as delivered to the collector of revenue, was introduced in evidence. No assessment of the land appeared on, nor was any warrant annexed to, the parts put in evidence. The lids and about one-third of the pages of the roll were missing, its binding cords out, and it was in several disconnected parts. The person who held the office of collector of revenue, and made the tax sale, testified that the roll originally had an outer binding or lid on it, and a warrant attached to it; that the warrant was usually placed on the inner first or last lid; that he never collected taxes or sold land without a warrant, nor ever sold any land that was not enrolled on the tax-book, stating that he testified that there was a warrant because or 'upon the principle' that he never received an assessment roll without one. Held, insufficient to overcome the effect of the deed as prima facie evidence of a legal assessment and warrant.

When there is legal evidence of an assessment of land, and the land has been sold for taxes, and the tax deed legally recorded, the provisions of section 20 of the revenue law of 1872, (chapter 1887,) limiting the grounds upon which a former owner or claimant may, after a year from the record of the deed, set aside the deed or recover the land, are valid and operative.

Internal improvement fund lands cease to be public lands, and become liable to taxation as private property, upon being entered by a person at the proper office, and evidence of the entry obtained, and if the taxes assessed afterwards are not paid the land may be sold for the collection of the same, although no conveyance or patent for the land may have issued.

After a referee has filed in the clerk's office an order refusing a motion for a new trial, he has no power to grant a rehearing of such motion, or to permit an amendment of the original motion by adding a new ground to the same.

COUNSEL

John G. Reardon, for plaintiff in error.

W. S. Bullock, for defendant in error.

OPINION

RANEY J.

If Freeman's mediate grantor, Harris, had a valid tax title, there is no necessity to discuss the question of the title of the former by adverse possession for seven years under a claim of right and color of title; still we may remark that we have been forced to a consideration of the validity of the tax title by the serious doubts left in our minds, after careful study, as to Freeman having shown a title by such adverse possession.

The tax sale was made July 1, 1872, for unpaid taxes assessed in the tax year of 1871. This sale was regulated by the act of February 29, 1872, c. 1887, entitled 'An act for the assessment and collection of revenue in this state.' The assessment, however, was made under the revenue act of 1869, c. 1713, to which the act just mentioned was, in effect, an amendment, doing away with certain of its provisions, and substituting others in their place.

The validity of the tax title is assailed upon the ground that the collector of revenue never received any warrant authorizing him to make sales for the collection of taxes, and also upon the ground that the land in question was never assessed or placed on the roll.

The seventeenth section of the act of 1872, above referred to, provides a substantial form of a deed of land sold for taxes, and that this deed shall beprima facie evidence of the regularity of the proceedings from the valuation of the land by the assessor to the date of the deed, inclusive, and of the title of the purchaser; and the twentieth section provides that no suit or proceeding shall be commenced by a former owner or claimant * * * to set aside any deed made in pursuance of any sale of land for taxes, or against the grantee in such deed, his heirs or assigns, or legal representatives, to recover possession of said lands, unless such suit or proceedings be commenced within one year after the recording of the deed in the county where the lands lie, except upon the ground that the said lands were not subject to taxation, or that the taxes were paid or tendered, together with the expenses chargeable thereon, before sale. There is saving clause as to persons under certain disabilities, but the plaintiff has not set up any disability.

The evidence as to the absence of an assessment and want of a warrant is the testimony of two witnesses,--Bullock, introduced by the plaintiff, and Atkinson, by the defendant,--and what is left of the tax-roll of that year. Bullock was a deputy of the clerk of the circuit court of Marion county at the time his deposition was taken in 1885. He says of this tax-roll, which was before him, that it is in the clerk's custody; that it has no warrant attached to it authorizing the collector to collect the taxes; and that, or (as we understand the witness to mean at this particular stage of his testimony) under the letter 'M' neither the name of, nor any assessment to, the plaintiff appears in it. He further says all of the book does not appear to be present, but that a part of the assessments under letter 'A' seems to be gone; that it has no binding or covering on it; that the pages are not numbered; that he cannot say positively that a part of the book is gone, but it seems to be; that its condition is very bad; the binding cords are out; that he thinks a number of pages might be out of the book, and he be unable to detect it; that four pages are disconnected, the binding is entirely loose, and in four disconnected parts; that all the assessments do not come in alphabetical order; that the warrant to the collector is usually placed on the last leaf of the book, but that it is hard to tell which is the last leaf of this book; that this warrant is usually placed on the leaf where there is no other entry made; that there is one leaf here on which no entry is made, and 'it appears that that was the last leaf in the book.' 'I have made a careful examination, and listing of assessments appear,' he says, 'to be alphabetically arranged from A to Z, and in regular order.' This last statement was made on his being handed the book, and asked to examine the same, and to testify on the point covered by his answer. Upon his attention being called to assessments under the letter 'M,' and asked whether or not it appears from said book that all the assessments under said letter are there, he replies: 'I cannot say they are; they are, with the exceptions of some names in the back of the book, which appear to be irregular assessments.' When asked whether if any of the pages under the letter 'M' were missing he could tell it, he replies that he could not. The book, he says, is separated in two or more distinct pieces under the head of the letter 'M.'

Montholan Atkinson testifies that he was tax collector for Marion county, Florida, in 1871. The book here shown him, purporting to be the assessor's book of 1871, is the book, or a part of it, from which he collected taxes for said county. It is not a complete book. The book had an outer binding or lid on it....