Reid v. Southern Development Co.

• Decision Date: 16 October 1906
• Citation: 52 Fla. 595,42 So. 206
• Parties: REID v. SOUTHERN DEVELOPMENT CO.
• Court: Florida Supreme Court

42 So. 206

52 Fla. 595

REID v. SOUTHERN DEVELOPMENT CO.

Florida Supreme Court, Division B.

October 16, 1906

Appeal from Circuit Court, Duval County; Rhydon M. Call, Judge.

Bill by the city of Jacksonville against J. M. De Wall and others to enforce a lien for taxes. Decree for plaintiff. On confirmation of sale, the Southern Development Company petitions to be paid the surplus. From a decree authorizing such payment, George Reid appeals. Affirmed.

Syllabus by the Court

SYLLABUS

When a particular provision of a statute relates to some immaterial matter, compliance with which is a matter of convenience rather than substance, or where the directions of a statute are given with a view to the proper, orderly, and prompt conduct of business merely, the provision may generally be regarded as directory.

The failure of the assessor or his assistant to make at least one visit to each precinct for the purpose of receiving tax returns, as required by section 15, c. 4322, p. 16, Acts of 1895, will not alone, of itself, vitiate the tax assessment. This provision of the statute is advisory or directory only.

The omission of words or marks to indicate dollars and cents as the amount of assessment on the assessor's book, when the entries are so made that the omission does not tend to mislead the owner of the land assessed, will not render the assessment void.

An objection to the introduction in evidence of a deed, made for the first time in this court, will not generally be considered by the appellate court.

This court will not tax costs against appellee for the insertion upon his direction by the clerk of the circuit court in the transcript of the record of papers which have a material bearing upon the questions presented here and having relation to the order or decree appealed from.

COUNSEL

Wm. B. Young, for appellant.

Cooper & Cooper, for appellee. On the 24th day of September, 1903, the city of Jacksonville filed its bill of complaint against J. M. De Wall, the Southern Development Company, George Reid, and others, to enforce its lien for unpaid taxes on certain real estate described therein. George C. Motes, one of the defendants, filed a disclaimer of any interest. George Reid, the Southern Development Company, and James Johnson filed answers, setting up their respective interests in the property, to which a replication was filed. All other defendants made default.

On the 2d day of November, 1904, the court made and entered a final decree in favor of the city, directing a sale of the property in question, and decreeing that the master pay any excess from the sale, after paying the amount decreed in favor of the city, into the registry of the court, to abide the further order of the court. The order of sale was confirmed.

On December 16, 1904, the Southern Development Company filed its petition to be paid the surplus in the treasury of the court, alleging that it was the owner of the property in question, to wit, the south half of lot 1, in block 13, Springfield, a part of the city of Jacksonville Duval county, Fla., by virtue of a tax deed duly executed and recorded; said deed being based on tax sale certificate No 578 of the sale of 1898, for the nonpayment of taxes for the year 1897. It was further alleged that, after the execution and delivery of said deed to it, the Southern Development Company, went into the actual possession of the said property under said deed on the 3d day of September, 1903, and has been in the actual, peaceable possession of said premises from the 3d day of September, 1903, to the date of the execution and delivery of the master's deed in this cause, and has bona fide made permanent improvements on said property to the amount and value of $479.97.

On the 16th day of December, 1904, the court made and entered an order requiring Reid and Johnson to plead to the petition filed by the Southern Development Company in 10 days.

On the 21st day of December, 1904, Reid filed his answer to the said petition, alleging that said Southern Development Company was not the owner of the lot in question; that the tax deed under which petitioner claims title was void for the reasons following, to wit: The assessor of taxes for Duval county, during the year 1897, did not comply in any particular with the provisions of section 15 of chapter 4322 of the Laws of Florida then in force; that said assessor did not, in person or by his assistants appointed by the county commissioners, ascertain by dillgent inquity the names of all taxable persons in said county; that neither the assessor nor his assistant made any visit to each precinct for the purpose of receiving tax returns, after having given 10 days' notice of such visit, between the 1st day of January, and the 1st day of March, in said year A. D. 1897, prior to the making up of said assessment roll; that the certificate on which the deed was issued by the collector to the state in the name of the treasurer was held by the state long after the time for redemption, and the title, if the sale was valid, had vested in the state, and the said petitioner could not acquire the title of the state by an assignment of the tax sale certificate made by the clerk; that at the time the said assessment was made, and at the time of said sale, J. M. De Wall and wife were openly and notoriously living on the said lot and claiming to own it. Replication was filed to this answer. Johnson also filed an answer to the petition. Reid also filed his petition for the surplus, and it was answered by the Southern Development Company, and replication was filed to its answer.

On the 14th day of February, 1905, the court made an order that the petition of said company be referred to Chas. S. Adams, Esq., as special master, 'to ascertain and report to the court whether or not the tax deed, a copy of which is attached to said petition, is valid and passed to petitioner the title to said land therein mentioned, and whether or not petitioner is entitled to any of the said funds in the registry of the court'; the master to report his findings to the court and the evidence on which he acted. On August 2, 1905, he filed a report, stating his 'findings of fact' and 'arguments and findings of law.' Such of the matter as may be necessary will be stated in the opinion.

On the 3d day of August, 1905, George Reid filed his exceptions to said report of the master. There are four exceptions. The first is to the finding that the assessment of taxes upon south half of lot 1, in block 13, Springfield, for 1897, was sufficient; that certificate 578 of the sale of July 4, 1898, for the taxes of 1897, was valid. Second, that the state of Florida transferred the title of said lot to the petitioner. Third, that the tax deed in evidence is based upon said assessment and sale and was valid. Fourth, that the petitioner is entitled to the entire proceeds in the registry of the court arising from the sale of the property.

On the 20th of March, 1906, the court made an order overruling the said exceptions, and on the 28th day of March, 1906, the court rendered a decree confirming said report and directing the clerk to pay over the funds in the registry of the court to the Southern Development Company.

From this decree the appeal is taken.

OPINION

PARKHILL, J. (after stating the facts).

There are four assignments of error, to wit:

(1) The court erred in not sustaining the exceptions to the master's report.

(2) The court erred in overruling the exceptions to the master's report.

(3) The court erred in rendering the decree of March 28, 1906.

(4) The court erred in directing the surplus funds in the registry of the court paid over to the Southern Development Company.

It is stated by counsel for appellant that the real and only question in this case is whether or not the assessment upon which the tax deed is based was valid.

The order of reference to the master directed him 'to ascertain and report to the court whether or not the tax deed of the petitioner is valid and passed title to the land mentioned.' In response to the decree of reference the finding of the master is a follows: 'The special master finds as matter of law that the assessment of taxes upon the south half (S. 1/2) of lot one (1), block thirteen (13), Springfield, for the year 1897, was sufficient; that certificate No. 578 of the sale of July 4, 1898, for the taxes of 1897, was valid; that the state of Florida transferred title thereto by assignment to the petitioner, Southern Development Company; that the tax deed in evidence based upon said assessment, sale, and certificate was valid; and that said petitioner, who entered into possession under the same and improved the property, is entitled to the entire proceeds in the registry of the court arising from the sale of the property at the suit of the city of Jacksonville, less such costs and expenses as this honorable court may tax against said fund.'

As the counsel for appellant states the point, if the deed was valid and vested the title in the petitioner, then the Southern Development Company was entitled to the money in the registry of the court. On the other hand, if the assessment was void, then the tax deed was not valid, and the petitioner was not the owner of the lot and was not entitled to the money in the registry of the court. This being so, we will follow the argument of counsel for appellant, confining the discussion to the validity or invalidity of the assessment on which the tax deed is based.

I. It is contended that the assessment was void because the assessor did not comply with the requirement of section 15 c. 4322, p. 16, Acts of 1895, in this: 'That the tax assessor did not ascertain by diligent inquiry the names of all taxable persons and all...