Spratt v. Price

• Decision Date: 01 June 1881
• Citation: 18 Fla. 289
• Court: Florida Supreme Court
• Parties: LEONIDAS W. SPRATT, APPELLANT, v. MILES PRICE, ET AL., APPELLEES

18 Fla. 289

LEONIDAS W. SPRATT, APPELLANT, v. MILES PRICE, ET AL., APPELLEES

Supreme Court of Florida

June 1, 1881

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Rehearing Denied 18 Fla. 289 at 312.

Original Opinion of June Term, A. D. 1881, Reported at: 18 Fla. 289.

Appeal from the Circuit Court for Duval county.

The facts of the case are stated in the opinion.

Judgment affirmed.

Cockrell & Walker for Appellant.

The tax sale at which Price became the purchaser was made necessary by his own default, he being the mortgagee of the lot, and as between him and the State, to whom the tax was due, it being his duty to pay it.

A purchase made when such a relation exists is made in wrong, and the law will conclusively presume, in circumvention of wrong, it was made in discharge of duty, not in repudiation of it. The universal principle is that a purchase made by one whose duty it is to pay shall operate as a payment only.

"Show the existence of the duty and the disqualification is made out in every instance." Cooley on Taxation, 346; 1 Aiken's (Vermont) Rep., 306, reported in 15 Amer. Decisions, 681; Blackwell's Tax Title, § 399; 48 Miss. 209; 30 Ill. 102; 44 N. Hampshire, 475.

From the time of the assessment of the tax to the execution of the deed to Spratt, say a period of two years, it was not only Price's privilege but his duty to pay the tax. During this whole time the land which secured to him the purchase money from Comfort owed the duty to the State to pay the tax. And Price's privilege to pay the tax was secured by a covenant in the mortgage, enforcing his duty to pay it, and adding the amount to the mortgage debt. His tax title then enured to the protection, not to the destruction of the title held by the mortgagor and himself.

In the Connecticut Life Insurance Co. vs. Balte, the Supreme Court of Michigan say, through Judge Cooley: "It certainly cannot be said that the second mortgagee owes any duty to the first mortgagee to protect his interest in the land. Neither on the other hand does the first mortgagee owe any such duty to the second mortgagee to protect his lien against the tax sale. To the State each of the three may be said to owe the duty to pay the taxes, and the State will sell the interest of all if none of these pay it. As between themselves the primary duty is on the mortgagor, but if he make default either of the mortgagees may pay, and one of the two must do so, or the land will be sold and his lien extinguished. * * * When, therefore, each mortgagee has the same interest in making the payment of the tax, and the same right to do so, and the same means of compelling repayment, it may well be held that a purchase by one shall not be held to cut off the right of the other, because it is based as much upon his own default as that of the party whose lien he seeks to extinguish."

This extract is thus liberally quoted to show that it is the duty the mortgagee owes to the State to pay the tax. The duty to pay the tax being shown, it follows that the attempted purchase by Price was in law merely a payment of the tax.

So Price regarded it, as he did not apply for a deed from the State, relying upon his old title to which he was restored by his purchase at mortgage sale, until nearly a year after the plaintiff commenced his suit.

If then it was Price's duty to pay the tax covered by the sale, under which he bought, the court erred in charging that the tax deed of latest date prevailed. This is true only when the party purchasing is under no disqualification to purchase.

But the charge asserted, as applied to the evidence, that, independent of the duty to pay the tax, the latest tax deed prevailed. Comfort himself could with as much propriety bid in the lands at tax sale, and thereby have defeated the title of the plaintiff.

The second charge asserts that the relation of an attorney or agent in and of itself disqualified one from purchasing at tax sale. If this be the law it was only necessary for the so-called equitable plea to allege that at the time of the plaintiff's purchase he was the agent or attorney of Price.

If an agent or attorney pays out his own money in the acquisition of a tax title he certainly cannot be divested in law or equity of the security the legal title furnishes him for his reimbursement by any act of the principal until the money is restored him.

The plaintiff requested the court to charge the jury as follows:

"The fact that the newspaper in which the advertisement of the tax sale is made was not filed, or did not remain on file in the Clerk's office, even if it has been proved that no such newspaper was filed, or remained on file in the Clerk's office, cannot affect the title of the purchaser."

The plaintiff also asked the following charge:

"The failure of the publisher or proprietor of a newspaper in which the advertisement was published to comply with the requirements of the tax law, after the sale to the purchaser, cannot affect the title of the plaintiff."

The refusal of these charges, construed in the light of the evidence before the jury, asserts the law to be that the validity of a tax title otherwise unassailable will be affected by the failure of the newspaper publishers to file in the Clerk's office copies of the papers containing the tax advertisement.

The tax law makes no such requisition upon the publisher; the law does not so expose the title of a purchaser who has parted with his money to the caprice or negligence of the publisher.

The law under which this sale was had declares the deed shall be prima facie evidence of the regularity of the proceedings from the valuation of the lands by the Assessor to the date of the deed, inclusive, and the title of the purchaser, and that the validity of any sale for taxes shall only be affected by alleging and proving that the property sold was not subject to taxation, or that the taxes had been paid before such sale, or that the property had been redeemed according to law.

The U. S. Stat., (12 Stat. 640,) similar in terms, has been construed by the Supreme Court United States, 98 U. S. Repts., 517, and the act sustained. Nor is there any want of harmony between this case and the Dickinson vs. Acosta case, 15 Fla. 621, as to the points decided. Chief-Justice Randall there enunciates the unquestionable doctrine that property cannot be subjected to taxation except in pursusuance of a levy duly authorized by law, which of necessity includes the listing, valuation and distribution or apportionment of the proper amount; and these last necessarily presuppose a taxing district defined by law.

We are content to accept the views announced in Dickinson vs. Acosta as indicating the things essential to the validity of a tax title.

The failure of the newspaper publisher to do what is required of him after the sale cannot be such an essential as affects the title of the purchaser.

The court further charged the jury that a title acquired by the defendant, after issue joined, though not set up under a plea of "puis darrien continuance," was available to the defendant. This we submit is error.

A title in the defendant acquired after the commencement of the suit is no defence thereto. 47 Barb. 595; Justin vs. Faught, 23 Cal. 237; Moore vs. Tice, 22 Cal. 513.

As the court entertained the views that an after-acquired title was available, it was bootless to discuss whether the title under tax sale was vested in Price by the certificate of purchase or by the deed.

We may admit a sheriff's deed, the court exercising control over the returns and proceedings of its own affairs, under a fiction of law to prevent injustice being done.

But this case does not admit of the application of the doctrine of relation.

C. P. Cooper for Appellees.

1. The deed under which plaintiff claims title to the property involved in this action being a tax deed is oniy prima facie evidence of the regularity of the anterior proceedings connected with sale of said property for taxes, and all the pre-requisites must have been complied with to make it a valid deed. Acts of Fla. 1874, Chapter 1976, Sec. 60; Dickinson vs. Acosta, 15 Fla. 615; Blackwell on Tax Titles, 401.

2. The tax law of 1874 provides that "the proprietors or foreman of any newspaper publishing any notice of sale shall forward a copy of each number of his paper containing such notice to Clerk of the county." This is required in order that the evidence may be kept that the notice was published the number of times required by law, and all things connected with notice must be strictly complied with. Act of Fla. 1874, Chap. 1976, Sac. 50; Blackwell Tax Titles, 237, 239, 274; Cooley on Taxation, 332 and note, 334, 337; Burroughs on Taxation, 293, 294.

3. The tax rolls show that this property was assessed as Miles Price's for taxes of 1875. Price sold to one Comfort September 17, 1875. Tax rolls show that thereupon the assessment was stricken out to Price and these words written: "Sold to Comfort." Collector thereby relieved Price from paying the taxes, but subsequently advertised the property as "Price's," and sold May, 1876, when Comfort was the owner. There was no proper assessment and no notice to Comfort, the sale is therefore illegal, and the plaintiff's deed obtained thereunder is void. Blackwell on Tax Titles, 114, 237, 274; Cooley, 259, 260, 334.

4. The testimony shows that F. F. L'Engle, who bought in the property and assigned his certificate to the plaintiff, who obtained his deed thereon, was at the time of said tax sale the agent of Comfort, the owner, and of Price, the mortgagee and had their funds in his hands to pay the taxes. A sale to him was...