Sarasota-Fruitville Drainage Dist. v. All Lands Within Said Dist. Upon Which Drainage Taxes for Year 1928 Have Not Been Paid
| Decision Date | 22 March 1946 |
| Parties | SARASOTA-FRUITVILLE DRAINAGE DIST. v. ALL LANDS WITHIN SAID DISTRICT UPON WHICH DRAINAGE TAXES FOR YEAR 1928 HAVE NOT BEEN PAID et al. |
| Court | Florida Supreme Court |
Rehearing Denied April 18, 1946.
Appeal from Circuit Court, Sarasota County; W. T Harrison, judge.
McKay Macfarlane, Jackson & Ferguson, of Tampa, and John F Burket, of Sarasota, for appellant.
Mabry, Reaves, Carlton, Anderson & Fields, of Tampa, for appellees.
In the year 1923 the Sarasota-Fruitville Drainage District was organized under the general drainage laws, now chapter 298, Florida Statutes 1941, F.S.A. Certain lands owned by L. L. Richardson, now deceased, were included in the district. The drainage taxes on these lands were not paid for the years 1928 and 1929, and on March 31, 1930 the drainage district filed suit under the provisions of sections 298.45, 298.46, Florida Statutes 1941 F.S.A., to foreclose the tax liens. Richardson entered his personal appearance in the suit and thereafter suffered a decree pro confesso for failure to answer. On May 18, 1931, and August 25, 1931, respectively, foreclosure decrees were entered in the suit, each affecting a different part of the property. The lands were sold by the master under the decrees on September 12, 1931, and purchased by the drainage district for the full amount of the taxes. Certificates of sale were thereupon issued to the district. Richardson failed to redeem the property within one year, as required by the provisions of section 298.46 Florida Statutes 1941, F.S.A., and on January 27, 1933, the trial court entered a decree confirming the sales.
No further steps were taken by the district to acquire deeds to the property until November 27, 1943. In the meantime L. L. Richardson died, and his children, Mary Louise Richardson and Clara Leslie Richardson, thereafter continued holding possession of the property as heirs of their father. On November 27, 1943, and on May 11, 1944, respectively, the master who conducted the sale issued two separate deeds conveying the property sold under the decree of foreclosure to the drainage district. No drainage taxes have been paid on the lands by Richardson or his heirs since 1927; neither have they paid state or county taxes thereon since 1929, and said taxes have been redeemed or paid by the district through the year 1944.
After the execution and delivery of the master's deeds to the drainage district the grantee made demand upon Mary Louise Richardson and Clara Leslie Richardson to deliver up possession of the land sold at the sale. Delivery of possession being refused, the district filed a petition for a writ of assistance to put the drainage district in possession of the property. For answer to the petition the respondents set up that subsequent to the time that title had become vested in the district by virtue of the confirmation of sale on January 27, 1933, they had acquired title to the property by reason of adverse possession. Testimony was taken on the issue and thereafter an order was entered by the chancellor denying the petition. An appeal has been taken from the order.
A writ of assistance is a form of process issuing out of chancery to transfer possession of land the title to and right to possession of which has been previously adjudicated. Hair v. Commercial Bank, 112 Fla. 499, 152 So. 180. Although its issuance may be withheld by the equity court, in the exercise of a sound discretion, the writ should ordinarily be granted in favor of the purchaser at a foreclosure when the sale has been confirmed and the deed has been given as against defendants and their privies, unless by answer to the petition such persons show a bona fide and colorable claim of right of possession arising subsequently to the decree. Gorton v. Paine, 18 Fla. 117; Bunch v. High Springs Bank, 76 Fla. 546, 80 So. 319; Dixon v....
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