Rio Vista Hotel & Imp. Co. v. Belle Mead Development Corp.

• Decision Date: 22 December 1937
• Citation: 132 Fla. 88,182 So. 417
• Parties: RIO VISTA HOTEL & IMPROVEMENT CO. v. BELLE MEAD DEVELOPMENT CORPORATION.
• Court: Florida Supreme Court

182 So. 417

132 Fla. 88

RIO VISTA HOTEL & IMPROVEMENT CO. v. BELLE MEAD DEVELOPMENT CORPORATION.

Florida Supreme Court, Division B.

December 22, 1937

Reaffirmed on Rehearing June 10, 1938.

Extraordinary Petition for Rehearing Denied July 14, 1938.

Suit by the Belle Mead Development Corporation against the Rio Vista Hotel & Improvement Company and others, to foreclose certain tax sale certificates. From a decree in favor of the complainant, the named defendant appeals.

Decree affirmed.

ELLIS C.J., dissenting.

BROWN J., dissenting on rehearing.

On Rehearing. Appeal from Circuit Court, Volusia County; H. B Frederick, judge.

COUNSEL

Scarlett & Futch, of Deland, and Walter C. Hardesty, Jr., of Daytona Beach, for appellant.

B. F. Brass, of Daytona Beach, for appellee.

OPINION

BUFORD Justice.

The Belle Mead Development Corporation brought its bill of complaint against the Rio Vista Hotel & Improvement Company, the Southern Abstract Company, as trustee, the city of Ormond, the Mortgage & Securities Company, H. L. Post, and Walter C. Hardesty, seeking to foreclose certain tax sale certificates, which had been purchased by complainant.

The bill of complaint alleged substantially that as against lot 91, block 27, Rio Vista, city of Ormond, taxes, lawfully assessed and levied, were unpaid for the years 1925, 1926, 1927, and 1928; that the city of Ormond was the purchaser of said land and of tax sale certificates No. 93 in the amount of $495.05, No. 305 in the amount of $304.95, No. 444 in the amount of $403.13, and No. 578 in the amount of $325.69, for the years 1925, 1926, 1927, and 1928, respectively, embracing and covering the above-described land; that on October 22, 1931, the town of Ormond, for valuable consideration, assigned each of said tax sale certificates to complainant; that more than two years have elapsed since the issuance of said tax sale certificates and no part of the moneys therein mentioned has been paid to complainant or to any prior holder thereof or to anyone for the use of complainant; that complainant holds a lien on said land for the full amount of principal and interest due on said tax sale certificates; that the interests claimed by various defendants in said land are inferior to complainant's lien; that H. L. Post has or claims some right, title, interest, or lien in and to said land because he has purchased and holds tax sale certificate No. 956 in the amount of $378.45 for the year 1929, and the lien for unpaid taxes amounting to $648.38 for the year 1930, from complainant, who in turn purchased the same from the city of Ormond; that complainant is ready and willing to do equity; that by chapter 14277, Special Acts of 1929, the town of Ormond was abolished and the city of Ormond was created, the act providing that the title, right, and ownership of property, uncollected taxes, dues, claims, judgments, decrees, and choses in action held and owned by the twon of Ormond passed to and became vested in the city of Ormond; that chapter 13206, Special Acts of 1927, ratified, confirmed, validated, and legalized the assessments, valuations, and levies of taxes for the years 1925 and 1926, and the said town was authorized to collect said taxes in the manner provided by law, or by the charter or ordinances of said town; that in the same manner, by chapter 14279, Special Acts of 1929, the assessments, valuations, and levies of 1927 and 1928 were validated and the town authorized to collect such taxes; and that in the same manner, by chapter 15400, Special Acts of 1931, the assessments, valuations, and levies of 1929 and 1930 were validated and the town authorized to collect such taxes.

Decree pro confesso was entered against the Mortgage & Securities Company and H. L. Post.

On January 12, 1935, the court denied the motion to dismiss the bill made by the city of Ormond, granted the motion to strike of the defendants, and denied certain other motions. On February 4, 1935, the court entered an order allowing the city of Ormond to file its answer, which was done on that date.

The Rio Vista Hotel & Improvement Company, the Southern Standard Abstract Company, as trustee, and Walter C. Hardesty, filed their amended answer to the bill of complaint. Upon motion, certain parts of the amended answer were ordered stricken by the court. The parts of the amended answer stricken, which are material on this appeal, are found in three paragraphs of the answer, the substance of which is as follows: (1) The assessment rolls of the town of Ormond for the years 1925-1930, inclusive, are partly in handwriting and partly in typewriting, prepared by some person, whose identity is not shown upon the face of the rolls, nor attached to them; that on said rolls is no verification purporting to be made by the person or persons who prepared said rolls; that there is written thereon no warrant to the town tax collector, nor was any warrant or affidavit of the assessor attached thereto originally or at any time since, commanding or directing the said collector to sell the lands described therein for nonpayment of taxes, upon default in payment; that this was contrary to the provisions of sections 940 and 942, C.G.L., and section 98 of chapter 14277, Special Acts of 1929; that this violated the Fourteenth Amendment to the United States Constitution by failing to follow due process of law, and article 9, section 5, of the Florida Constitution, providing that 'all property shall be taxed upon the principles established for State taxation.' (2) Neither the Rio Vista Hotel & Improvement Company, owner of lot 91, block 27, Rio Vista, or the Rio Vista Hotel Corporation, its predecessor in title, owned any personal property, goods, chattels, or intangibles between January 1, 1925, and January 1, 1930, nor do they now or have they ever owned in said town of Ormond any such personalty; that the town of Ormond, which later became the city of Ormond, at no time during said period assessed or levied upon any personal property, goods, chattels, or intangibles, or any power transmission lines of the Florida Power & Light Company, or the property and equipment lines of the Southern Bell Telephone & Telegraph Company, operating in said town, or the two franchises held by them, all valued at several million dollars, and which personalty if it had been assessed and levied upon would have reduced defendant's taxes by as much as 50 per cent, and defendants tender into court the sum of 50 per cent as an offering to do equity in the premises, or such other sum as the court may determine to be due; that the Rio Vista Hotel & Improvement Company does not now and has not since January 1, 1925, owned any other property taxable in said town of Ormond, therefore it cannot tender into court any other taxes. (3) The defendants were at no time since January 1, 1925, guilty of laches in their efforts to secure from said town of Ormond a just valuation of all personal property in said town; that they, through their officers, agents, and attorneys, repeatedly appeared each year before the board of equalization of said town and brought these things to their attention; and that in 1928 they brought mandamus proceedings against said town to compel the levy of personalty in said town; that these defendants would have pressed said mandamus suit to final conclusion if they had had available funds to do so, but said town hired the best legal talent and had the cause removed to another circuit, making the prosecution of the case so inconvenient that the proceeding was allowed to remain in status quo; that this shows a deliberate and systematic scheme to exempt all property except lands from taxation in said town contrary to article 9, section 1, Florida Constitution.

The first four questions presented in appellant's brief relate to the same matter, namely whether the absence from the face of the tax roll, or anything attached thereto, of an affidavit showing who prepared the tax roll and a warrant from the assessor to the tax collector commanding the latter to proceed with the collection of taxes, renders the assessment void and whether curative acts subsequently passed will remedy there infirmities in the tax roll. All of these questions will be disposed of together.

Lot 91, block 27, Rio Vista, was sold to the city of Ormond for nonpayment of taxes for the years 1925, 1926, 1927, and 1928, together with the tax certificates for those years. The certificates were later purchased by complainant who is now seeking to foreclose them. One defense to the foreclosure is that the assessments for those years were void because the tax rolls contained no verification of the person making them, and they contained no warrant of the tax assessor commanding the tax collector to collect the taxes or sell the lands for nonpayment thereof.

'The tax-roll must be signed and must be authenticated as required by statute; but if no statute requires it, verification by the assessors is not necessary. The statutes generally provide how the assessment roll or list shall be authenticated, and as the purpose is to supply record evidence that in the performance of their duty the assessors have obeyed the law, compliance with the statutory direction has generally been held imperative. This includes the signature of the assessors where required; but where the statute required the roll to be signed, and a certificate to be attached, the signing of the certificate was held to dispense with a signing of the roll. The failure to attach the cretificate or other statutory verification would be still more plainly a failure to comply with the statute in its essentials, the verification in express terms being, more obviously, a matter of substance than the signing.' 3 Cooley, Taxation...