Ropes v. Minshew

• Citation: 41 So. 538,51 Fla. 299
• Parties: ROPES v. MINSHEW et al.
• Decision Date: 11 June 1906
• Court: United States State Supreme Court of Florida

41 So. 538

51 Fla. 299

ROPES v. MINSHEW et al.

Florida Supreme Court, Division B.

June 11, 1906

Error to Circuit Court, Volusia County; Minor S. Jones, Judge.

Action by B. B. Minshew and W. V. Carter against E. E. Ropes. Judgment for plaintiffs, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where a tax deed to the premises sued for has been introduced in evidence by the plaintiff under a statute making a tax deed prima 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 subsequently the defendant introduces testimony tending to show the tax deed to be void, it is error for the court to refuse to instruct the jury upon the legal effect of the evidence so introduced by the defendant.

Where the land is assessed as the property of 'Valentine Dollar, Assignee,' and advertised and sold as the property of 'Valentine Dallen Association,' the tax deed is void, since the assessment and advertisement for sale must correspond in all material particulars.

The plaintiff in ejectment must recover upon the strength of his own title, and not on the weakness of his adversary's title.

A verdict in ejectment, which simply finds that the plaintiffs are entitled to a fee-simple estate to the lands described therein, does not find the right of possession in the plaintiffs, nor does it authorize the entry in behalf of plaintiffs of a judgment for recovery of possession of the land.

COUNSEL E. E. Ropes, in pro. per.

OPINION

PARKHILL J.

On the 28th day of August, 1902, B. B. Minshew and W. V. Carter brought an action of ejectment in the circuit court of Volusia county against E. E. Ropes for the recovery of a tract of land lying in said county, described as lot 3 except southeast 10 acres, section 29, township 15 S., range 28 E., containing about 65 acres, and for mesne profits.

The defendant pleaded not guilty and the bar of statute of limitations.

A trial was had, which resulted in the following verdict being rendered by the jury in favor of the plaintiffs April 11 1905: 'We, the jury, find for the plaintiffs, and that they are entitled to a fee-simple estate to lot 3, except southeast 10 acres, section 29, township 15 S., of range 28 E., and fix their damages at $3.00.' Upon the said verdict the following judgment was entered by the court April 12, 1905:

'It is thereupon upon consideration thereof ordered, adjudged and decreed that the plaintiffs, B. B. Minshew and W. V. Carter, do have and recover of and from the defendant herein, E. E. Ropes, the following land as described in the declaration and verdict and an estate in fee simple thereon, to wit: Lot 3, except the southeast 10 acres, section 29, township 15 S. of range 28 E., together with the sum of $3 for their damages herein, and the sum of $26.43 for their costs in this behalf expended, and that the plaintiff do have execution therefor.'

The defendant below, who is plaintiff in error here, seeks reversal by writ of error. The plaintiffs sought to recover, in this case, by virtue of a tax deed dated the 6th day of January, A. D. 1898, based upon a sale made in 1894 for the unpaid taxes of 1893. This deed was admitted in evidence by the court; and the defendant offered in evidence, to show that plaintiffs' said deed was void, a certified copy of the tax book for 1893, so far as related to the land in controversy, as showing that the land sold was assessed to 'Valentine Dollar, Assignee,' which was admitted in evidence by the court.

And the defendant also offered in evidence a certified copy of the record of the advertisement of said land for sale for the unpaid taxes of 1893, as showing that the owner thereof was stated as 'Valentine Dallen Association,' which was admitted in evidence by the court.

The parties having concluded and submitted their evidence, the defendant requested the court to charge that, 'if the jury believe from the evidence that the assessment gives the name of one person as the owner and the advertisement the name of another, the jury will find for the defendant.'

The court refused to give this charge. The defendant excepted and assigns the refusal of the court to so charge as error.

When this case was here before we said: 'The tax law of 1893 (Acts 1893, p. 36, c. 4115, § 61) makes a tax deed prima facie evidence of the regularity of the proceedings from the valuation of the land by the assessor to the date of the deed, inclusive. The defendant had a right to overcome this prima facie evidence by proof showing the deed to be void. After the introduction of evidence tending show the deed to be void, he should have prepared a charge informing the jury what effect should be given by them to his rebutting testimony, and requested the judge to give it.' Ropes v. Minshew & Carter, 47 Fla. 212, text 214, 36 So. 579, 580.

Chapter 4010, p. 1, Acts 1891, and chapter 4115, p. 3, Acts 1893 provide: 'The assessor shall set down in the assessment rolls, following and opposite the description of the lands, the name of the owner or person in whose name the return is made; and when the land has not been returned and when the assessor has no means of discovering the name of...