Napoleon B. Broward Drainage Dist. v. Certain Lands Upon Which Taxes Were Due

• Decision Date: 06 February 1948
• Citation: 160 Fla. 120,33 So.2d 716
• Parties: NAPOLEON B. BROWARD DRAINAGE DIST. et al. v. CERTAIN LANDS UPON WHICH TAXES DUE et al.
• Court: Florida Supreme Court

33 So.2d 716

160 Fla. 120

NAPOLEON B. BROWARD DRAINAGE DIST. et al. v. CERTAIN LANDS UPON WHICH TAXES DUE et al.

Florida Supreme Court

February 6, 1948

Rehearing Denied Feb. 27, 1948.

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

Davis & Lockhart, of Ft. Lauderdale, for appellants.

English Lester & O'Bryan, Rogers, Morris & Griffis and Abbot & Smith, all of Ft. Lauderdale, for appellees.

CHAPMAN, Justice.

The Napoleon B Broward Drainage District was created by Chapter 8871, Laws of Florida, Special Acts of 1921. On May 12, 1947, it filed in the Circuit Court of Broward County, Florida, a suit to foreclose delinquent tax certificates owned by it and then two years or more of age, which had been levied and assessed against certain lands situated within the drainage district, which lands were accurately described and set out in the bill of complaint. This suit was filed and prosecuted to a final decree under the several provisions of Chapter 19134, Laws of Florida, Acts of 1939.

Section 4 of Chapter 19134 supra, under which the foreclosure in the case at bar was prosecuted to a final decree, in part, provides that at least 30 days prior to the filing of such bill in chancery to foreclose in rem public notice of intention to file the same shall be published once in a newspaper published in Broward County, Florida. At least 30 days prior to the filing of any such suit in chancery written notice of intention of file the same shall be sent by registered mail to the last known address of the holder of the record title * * * upon each tract of land to be included in said bill in chancery; such notice shall briefly describe the particular lot or parcel of land, shall state the amount of tax certificate and/or special assessment liens sought to be enforced and shall warn said owner or holder of liens and mortgages that on or after the day named said bill to enforce the same will be filed, unless paid on or before said date. A certificate of the attorney shall be attached to the bill of complaint to the effect that said written notice has been given and such certificate shall be prima facie evidence that the provisions of the act (Section 4 of Chapter 19134, supra) have been complied with.

Section 4, supra in part, further provides:

'Jurisdiction of said lands, and of all parties interested therein, having any claim thereto, or lien thereon, in a proceeding in rem shall be obtained by publication of a notice to be issued as of course by the Clerk of the Circuit Court upon the filing of such Bill, once a week for four consecutive weeks, directed to all persons and corporations interested in or having any lien or claim upon any of the lands descirbed in said notice and said Bill. Such notice shall describe briefly each parcel of land involved, and shall require all parties to appear and defend such suit on or before a Rule Day specified in said Notice, which shall be not less than twenty-eight days after the first publication of such notice.

* * *

* * *

'You Are Hereby Notified to appear and make your defenses to said Bill of Complaint on or before the ___ day of ___ A. D. 19_, and if you fail to do so on or before said date the Bill of Complaint will be taken as confessed by you, and you will thereafter be barred from contesting the said suit; said respective parcels of land will be sold by decree of said Court to satisfy the amounts chargeable in favor of said District against said lands, together with interest, penalties, attorneys' fees and costs, and upon such sale you will be thereafter barred and foreclosed from asserting any interest in, claim to, lien upon, or right of redemption against such lands.

'In Witness Whereof, I have hereunto set my hand and affixed the seal of said Court, this ___ day of ___, A. D. 19_.

___

Clerk of the Circuit Court.'

The above quoted provision of the statute specifically provides that the notice to appear be made returnable to a rule day. It is admitted that the notice to appear in the case at bar as signed and published by the Clerk was made returnable to a day other than a rule day of the Circuit Court of Broward County, Florida, to wit, June 12, 1947. A final decree based on the above published notice was entered on June 17, 1947. Under this foreclosure decree the Columbia Realty Company became the purchaser at the Master's sale of described lands and by petition for a writ of assistance prayed for an order of the Court placing it in possession of...