Newsom v. Belle Mead Development Corp.

• Decision Date: 14 February 1938
• Citation: 179 So. 160,131 Fla. 143
• Parties: NEWSOM v. BELLE MEAD DEVELOPMENT CORPORATION et al.
• Court: Florida Supreme Court

179 So. 160

131 Fla. 143

NEWSOM v. BELLE MEAD DEVELOPMENT CORPORATION et al.

Florida Supreme Court, Division A.

February 14, 1938

Error to Circuit Court, Volusia County; H. B. Frederick, Judge.

Ejectment suit by J. C. Newsom against the Belle Mead Development Corporation wherein the plaintiff claimed title and right of possession to the lands under a deed and mesne conveyances established by stipulation, and the defendant claimed under a tax deed. A judgment was entered for the defendants, and the plaintiff brings error.

Reversed.

COUNSEL Francis P. Conroy and Crawford & May, all of Jacksonville, for plaintiff in error.

B. F Brass, of Daytona Beach, for defendants in error.

OPINION

BUFORD Justice.

In an ejectment suit the plaintiff claimed title and right of possession to the lands under a deed and mesne conveyances established by stipulation.

The defendant claimed under a tax deed.

The plaintiff described the land as:

'A certain tract or parcel of land, situated, lying and being in Volusia County, State of Florida, known and described as follows, to-wit:

'Lot two (2) Block Six (6), Mason &amp Carswell's Subdivision of Holly Hill of the Fleming Purchase of the Thomas Fitch Grant, according to map in Map Book 2, page 90, of record in Public Records in the office of the Clerk of the Circuit Court of said County.'

The plea was not guilty.

In the tax deed the description was as follows:

'Situated and being in the County and State aforesaid, and described as follows, to-wit: N 1/2 of Lot 2, Block 6, M. & C Holly Hill, S 1/2 of Lot 2, Block 6, M. & C. Holly Hill, containing ----- acres, more or less.'

A jury having been waived and the trial as to law and facts having been submitted to the trial judge, the trial judge stated his findings of fact and rendered judgment in favor of the defendant.

Two questions are involved. The first is whether or not the description contained in the tax deed was sufficient to convey title to the lands described in the plaintiff's declaration; and the second is whether or not, if the description was insufficient on its face, parol testimony could be resorted to for the purpose of showing that the lands described in the tax deed were identical with the lands described in the declaration.

It must be borne in mind that this was not a suit to foreclose a lien on the chancery side of the docket, but was a law action, and the tax deed was relied upon not as the evidence of a lien, but as a muniment of title.

It is well settled in this jurisdiction 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, and evidence aliunde not referred to in the deed cannot be used to ascertain the land intended to be conveyed. See Jarrell v. McRainey, 65 Fla. 141, and 144, 61 So. 240; Dixon v. Cocoa, 106 Fla. 855, 143 So. 748.

In Tax Securities Corporation v. Borland et al., 103 Fla. 63, 137 So. 151, 154, we said:

'It will be seen from the foregoing recitals of the proceedings that the defendants based their attack on the validity of the tax deed upon two general propositions. The first was that the assessment was invalid, and the second was that the deed was not issued in conformity with the necessary statutory requirements. It is not needful to discuss the validity of the assessment, as there appears a fatal defect in the issuance of the tax deed which invalidates it as evidence of title, though it may constitute a sufficient basis on which to ground a suit to foreclose a tax lien under the provisions of chapter 14572, Acts of 1929.'

In Miller v. Lindstrom, 45 Fla. 473, 33 So. 521, it was held:

'A description of lands on an assessment roll, so faulty as not to warn the owner of the charge upon his land, or to advise possible purchasers what land is to be sold, will invalidate the assessment.

'A description of land in the assessment roll, as 'lot 1, Assessor's, Pierson,' is insufficient to support a tax deed; it being shown in evidence that there was no such map as Assessor's Pierson on record, but that there were recorded, maps designated, respectively, 'Assessor's Plat of C. F. Pierson's Addition to Pierson's' and 'Assessor's Subdivision of E 1/2 N.E. 1/4 & N.E. 1/4 of S.E. 1/4 of Sec. 33, T. 14 S., R. 28 E., at Pierson.”

In that case the description used, we think, was more definite than the description which was used in the tax deed here under consideration.

The insufficiency is accentuated by the fact that the record shows that there was a municipality known as Holly Hill in Volusia county, Fla., not far distant from the subdivision known as Mason & Carswell's subdivision of Holly Hill of the Fleming purchase of the Thomas Fitch grant according to the map in Map Book 2, page 90, or record in public records in the office of the clerk of the circuit court of said county.

In volume 26, page 357, R.C.L., the text says: 'A description in an assessment which is inherently defective cannot be supported by extrinsic evidence.' This court has applied that rule to descriptions in tax deeds where the deeds were relied upon as muniments of title, but has applied a more liberal rule where the tax deed or the tax sale certificates was relied on only as the evidence of a lien. This is because that when the certificate or deed is relied upon as a lien the defendant, the owner at the time the certificate or deed was issued, in the proceedings to enforce the lien is given the opportunity to redeem from such lien as may have been created, and is given notice of the claim of the lien on the particular property involved. See Tax Securities Corporation v. Borland, supra.

In the case of Power v. Bowdle, 3 N.D. 107, 57 N.W. 404 409, 21 L.R.A. 328, 44 Am.St.Rep. 511, which was cited with approval by this court in Jarrell...