Smith v. City of Arcadia

• Decision Date: 30 May 1941
• Citation: 2 So.2d 725,147 Fla. 375
• Parties: SMITH et al. v. CITY OF ARCADIA.
• Court: Florida Supreme Court

2 So.2d 725

147 Fla. 375

SMITH et al. v. CITY OF ARCADIA.

Florida Supreme Court

May 30, 1941

M A. Rosin, of Arcadia, for petitioners.

Leitner & Leitner, of Arcadia, for respondent.

BUFORD, Justice.

On petition for writ of certiorari under Rule 34 we review order of the Circuit Court denying motion to dismiss bill of complaint. The bill of complaint was based upon the theory that one who acquired title by purchase at sale under decree of foreclosure of lien by the municipality for unpaid delinquent municipal taxes became a tenant in common with one who thereafter acquired tax deed duly issued and based upon tax sale certificate for delinquent state and county taxes, which state and county taxes were delinquent at and before the time of the foreclosure.

The complainant sought partition of the lands identically described in the Master's Deed under foreclosure and in the tax deed.

The bill of complaint avers, and the motion to dismiss admits, that taxes on the involved lot were assessed by the City of Arcadia for the years 1925 to 1937, both inclusive, and that during the year 1938 the City of Arcadia filed suit to foreclose its liens for such taxes so assessed. That the City of Arcadia prosecuted its suit to final decree and in 1939 under decree of foreclosure brought in the said lands and took Master's Deed conveying the same to the City of Arcadia.

The record also shows that the same property was assessed for state and county taxes for the years 1936 to 1940, both inclusive, and that on the 5th day of August, 1940, Katherine T. Smith having acquired the state and county tax sale certificates and having caused advertisement for tax deed to have been duly made, acquired a tax deed from the State of Florida conveying the said lands to her.

Complainant prayed partition of the lands pro tanto between the parties in proportion to the amounts paid by each for the respective deeds.

The chancellor held that the parties were tenants in common and made an order denying the motion to dismiss the bill of complaint.

If the bill of complaint contains any equity, it is upon the theory that the City of Arcadia and Katherine T. Smith are tenants in common.

It appears that such theory is untenable, because the title claimed by each party is a new and independent title and each is adverse to the other. The City of Arcadia claims title under a foreclosure suit wherein the municipal lien for taxes was foreclosed and in which suit the lien for state and county taxes was not involved and was not foreclosed or in anywise affected. Katherine T. Smith claims a new and independent title by a tax deed issued by the State of Florida in what we have termed a statutory foreclosure of the lien accruing by reason of the non-payment of state and county taxes. See Cremin v. Quigley, 104 Fla. 133, 139 So. 383. The lien for unpaid delinquent municipal taxes and the lien for unpaid delinquent state and county taxes were of equal dignity when both liens existed, but when one of the liens was extinguished and a new and independent title accrued under the master's deed, there then remained but one of the liens which had therefore existed and that remaining lien, not having been an inferior lien, then became a paramount lien. This does not involve the doctrine of a merger of a lesser estate into a greater estate but involves the extinguishment of one lien leaving another of equal dignity in full force and effect.

The fact that the City of Arcadia became the purchaser of the land under foreclosure of its tax liens is of no moment. The City of Arcadia is in the same position with the same legal rights and remedies as would have been enjoyed by any other person or corporation, had it been the purchaser at that foreclosure sale, and has no additional rights. In the City of Bradenton v. Northern Investment Corp., 121 Fla. 470, 164 So. 136, we held: 'The law is settled that the tax lien of the city of Bradenton was extinguished when it foreclosed and took title to the property after final judgment and sale, that said title was free of the city lien for the reason that it was merged in the final decree of judgment. No liens remained outstanding against it except the liens of persons or corporations not made parties to the suit. After the final decree and sale, the city, having purchased the property, was on the same footing that any other purchaser would have been. City of Bradenton v. Lee, supra [120 Fla. 100, 162 So. 139]; 15 R.C.L. 782; 23 Cyc. 1110, 1118.'

So when the City of Arcadia took title under the foreclosure of the municipal tax lien it took that title subject to the lien then existing in behalf of the State and County for delinquent taxes therefore accruing and evidenced by the tax certificates then outstanding and upon which the deed to Katherine T. Smith thereafter was issued. That lien continued to exist until it was extinguished by the issuance of the tax deed to Katherine T. Smith.

In Ridgeway v. Reese, 100 Fla. 1304, 131 So. 136, 138, we said: 'Tax sale certificates are not 'grants' made by the State or by the executive department of the state government. Such certificates evidence the existence of liens for unpaid taxes that are past due. The statute creates a lien upon lands for taxes assessed thereon, and the certificate gives a right to a conveyance of the land, unless the certificate is duly redeemed by paying the taxes due with interest, costs, and charges. Comp.Gen.Laws 1927, § 1003, and § 985, as amended by Acts 1929 (Ex.Sess.), c. 14572, § 9. The lien evidenced by a tax sale certificate may be enforced as provided by law. One statutory remedy to individuals holding tax certificates is the issuing in the name of the state of a deed conveying the land to the certificate holder, upon due notice to the owner, if the certificate purchased at the tax sale or from the state is not redeemed. The state does not own the land except through the tax sale, and does not purport to convey it except as a means of enforcing the sovereign right to collect the taxes duly levied on the land.'

In the case of City of Sanford v. Dial, 104 Fla. 1, 142 So. 233, 239, we said: 'If a municipality having liens for taxes and special assessments on lands is not made a party in a suit to foreclose state and county tax liens on the land, so that the municipal liens may be adjudicated in the suit, a sale of the land under the foreclosure proceedings will be subject to such municipal tax and special assessment liens. See Lee v. Walter-Keogh, Inc. , 141 So. 131, decided at this term.'

A corollary of this is that if the holder of state and county tax sale certificates, and thereby being the owner and holder of the liens evidenced by such certificates on lands, is not made a party in a suit to foreclose a municipal tax lien on the land so that the state and county and municipal liens may be adjudicated in the suit, a sale of the land under the foreclosure proceedings will be subject to the delinquent state and county tax assessment liens.

In Stuart v. Stephanus et al., 94 Fla. 1087, 114 So. 767, 768, we said:

'Generally speaking, the person asserting such a tax title need go no further than his tax deed. The deed is the inception of that title and is prima facie evidence thereof. Brown v. Castellaw, 33 Fla. 204, 14 So. 822. If the tax deed is valid, the former title can neither assist nor prejudice the tax title. The tax grantee takes a complete and perfect title by another right, by a new, independent, and paramount grant. * * *

'If complainant's tax deed is valid, the former record title is extinguished and terminated by operation of law. It therefore constitutes no cloud, either actual or apparent, upon complainant's tax title, which fact appears from the public records themselves, without the aid of a decree in equity.'

In Clermont-Minneola Country Club, Inc., v. Coupland et al., 106 Fla. 111, 143 So. 133, 136, 84 A.L.R. 1354, we said: 'There can be no question that under sections 894 and 896, Comp.Gen.Laws 1927, taxes lawfully imposed upon real property create a lien thereon superior to all others and remains in full force and effect until discharged.'

In Dean v. Kane, 106 Fla. 814, 143 So. 656, 657, we said: 'The law of this state is that a tax title has nothing to do with the previous chain of title and is not in any way connected with it, but that it is the breaking up of all previous titles and extinguishes and destroys all other titles and ordinary liens, and consequently the issuance of a valid tax deed creates in the purchaser a new and original title entirely disconnected with that of the former owner, going back no further than the tax sale and not incumbered with any previous lien or collateral interests subordinate to the dignity of the tax lien as fixed by the statute in relation to other liens and collateral interests.'

This was reaffirmed in Hecht et al. v. Wilson, 107 Fla. 421, 144 So. 886, 145 So. 250.

In Security Land & Investment Co. v. Ranger Realty Co., 115 Fla. 640, 641 156 So. 23, 25, we held: 'If there are other outstanding state, county, or city tax certificates against the property involved in this case, which certificates have not been brought into these proceedings and adjudicated, the only legal effect of their omission from the proceedings is that complainant in this case makes the foreclosure decree subject to the lien...