San Sebastian Development Corp. v. Couch

• Court: Florida Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: San Sebastian Development Corp. v. Couch, 103 Fla. 692, 138 So. 61 (Fla. 1931)
• Decision Date: 24 November 1931
• Parties: SAN SEBASTIAN DEVELOPMENT CORPORATION v. COUCH.

138 So. 61

103 Fla. 692

SAN SEBASTIAN DEVELOPMENT CORPORATION v. COUCH.

Florida Supreme Court, Division B.

November 24, 1931

Suit by R. O. Couch against the San Sebastian Development Corporation. From a final decree for the complainant, from an order confirming a foreclosure sale, and from an order denying a rehearing and refusing to strike out the final decree, the defendant appeals.

Affirmed.

COUNSEL Appeal from Circuit Court, Brevard County; W W. Wright, judge.

John D Shepard, of Cocoa, for appellant.

Fred A Watts, of Melbourne, for appellee.

OPINION

PER CURIAM.

On September 11, 1929, R. O. Couch filed his bill in the circuit court of Brevard county, Fla., in chancery, against San Sebastian Development Corporation, seeking to establish and foreclose a lien for taxes alleged to have been paid by him upon certain lands in Brevard county.

The bill sets forth that on April 10, 1924, appellee procured a tax deed to the land involved from the state of Florida, and paid out for taxes on the property the sum of $288.81. Interest is claimed at the rate of 25 per cent. for back taxes and at 8 per cent. for taxes paid subsequent to issuance of the tax deed.

Process was served upon the resident agent of appellant at Tallahassee, Fla.

On November 4, 1929, decree pro confesso was entered against the appellant, whereupon a master was appointed, testimony taken and final decree entered on December 3, 1929, decreeing a lien to exist in favor of appellee for the full amount of his claim. The final decree herein ordered that these amounts, together with costs, be paid by appellant, and in default of payment that the master give notice by publication and sell the land on a rule day to the highest and best bidder for cash.

On December 18, 1929, appellee petitioned the court for a rehearing, and moved that the final decree be stricken.

On February 25, 1930, the master reported that he had complied with the final decree and made sale of the lands to appellee. This sale was confirmed on February 25, 1930.

On March 14, 1930, the court below denied the petition for rehearing, and refused to strike the final decree. This appeal is from the final decree, from the order confirming sale, and from the order denying a rehearing and refusing to strike the final decree.

The bill of complaint herein, after setting forth payment of taxes by appellee and his procuring of a tax deed and the claim of complainant for a lien for the amount paid, with interest, then sets forth somewhat in detail that, after appellee had procured his tax deed bearing date April 10, 1924, one R. H. Hemphill on November 21, 1925, brought suit against appellee in the circuit court of Brevard county, Fla., in chancery; that R. H. Hemphill in his bill claimed to own the lands here involved, and that R. H. Hemphill in said suit sought to have his title in and to all of the lands here involved quieted and appellee's tax deed decreed to be void and of no effect; that appellee herein was made party defendant in the suit brought by R. H. Hemphill, and that a final decree was herein rendered against the appellee on the 2d day of February, 1928, wherein it was decreed that the title of appellee to the lands here involved, and also his tax deed, was void and of no effect, and that title to all of said land was therein quieted in R. H. Hemphill. The bill of complaint herein attaches a copy of the tax deed issued to appellee, which was decreed in the previous suit to be void, and such deed is made a part of the bill here. A copy of the final decree rendered in the suit brought by R. H. Hemphill is also attached to the bill of complaint herein and by apt words made a part thereof.

The final decree of February 2, 1928, in the suit by R. H. Hemphill against R. O. Couch decrees the tax deed to be void, and the fee-simple title to the property here involved is therein decreed to be quieted in R. H. Hemphill to inure to the benefit of the San Sebastian Development Corporation, his grantee. No appeal appears to have been taken therein, and there is no provision in the final decree for refund of taxes paid by appellee.

Section 1026, Comp. Gen. Laws 1927, section 795, Rev. Gen. St. 1920, which is section 3 of Chapter 12409, Acts of 1927, provides that a party recovering land on having declared invalid a tax deed must refund taxes paid, and interest, and make reparation for improvements placed upon the land while the tax deed remained in force and unchallenged.

Said section 1026, Comp. Gen. Laws 1927, supra, reads as follows:

'If in any suit at law or in equity involving the validity of any tax deed it shall be held by the court that said tax deed was invalid at the time of its issuance and that title to the land therein described did not vest in the tax deed holder, then, if the taxes for which said land was sold and upon which said tax deed was issued had not been paid prior to issuance of such deed, the party in whose favor the judgment or decree in such suit shall be entered, shall pay to the party against whom such judgment or decree shall be entered the amount paid for such tax deed and all taxes paid upon said land, together with twenty-five per cent interest thereon for the first year and eight per cent interest thereon for the time after the first year and all legal expenses in obtaining said tax deed, including publication of notice and clerk's fees, for issuing and recording such tax deed, also the fair cash value of all permanent improvements made upon said land by the holder during the life of said tax deed. The amount of such expenses and the fair cash value of improvements, as aforesaid, shall be ascertained and found upon the trial of the suit, and for which such tax deed holder shall have a prior lien upon said land for the payment of said sums of money in full.'

The above statute appears to have been in force when appellee procured his tax deed and paid taxes upon the lands described in the deed. The court below, by its decree which is appealed from to this court, gave effect to the statute by foreclosing a lien against the land involved for the amount of taxes, and interest, which the holder of the invalid tax deed had expended prior to the decree adjudicating that the tax deed was invalid and setting it aside. The amount decreed was for principal $221.81, for interest thereon at 8 per cent. from April 10, 1925, $81.56, and penalty of 25 per cent. for first year $55.70. After finding that the complainant was entitled to have and receive the immediate payment of the foregoing indebtedness, namely, the sum of $360.07, the court decreed that there was a valid and subsisting statutory lien under section 1026, Comp. Gen. Laws 1927, supra, upon the property for the aforesaid amount, and ordered that said lien be foreclosed by a sale of the property if the same were not paid by a date named in the decree.

The defendant in the lower court, who is the appellant here, contends that, under the holding of this court in Hughey v. Winborne, 44 Fla. 601, 33 So. 249, that where the defendant in a proceeding in equity to declare void a tax deed held by him based upon a certification of lands to the state for the nonpayment of taxes makes no proof as to the amount of taxes and disbursements which he claims should be refunded to him by complainant, it is not error for the court to declare void the deed without making provision for the payment by complainant to defendant of said taxes and disbursements.

The appellant also contends that a decree quieting title against an invalid tax deed destroys all liens not protected by provisions in the decree, if the lienholders were made parties defendant. 51 C.J. 284; Morarity v. Calloway, 134 Ind. 503, 34 N.E. 226.

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