State Ex Rel. Rogers v. Sweat

• Decision Date: 23 January 1934
• Citation: 152 So. 432,113 Fla. 797
• Court: Florida Supreme Court
• Parties: STATE ex rel. ROGERS et al. v. SWEAT. Sheriff.

152 So. 432

113 Fla. 797

STATE ex rel. ROGERS et al. v. SWEAT. Sheriff.

Florida Supreme Court, Division B.

January 23, 1934

Original habeas corpus proceeding by the State, on the relation of William H. Rogers and Louis Kurz, against Rex Sweat, sheriff of Duval County, Fla.

Return to writ of habeas corpus quashed and petitioners discharged.

COUNSEL P. L. Gaskins, H. T. Rogers, and J. Henry Taylor, all of Jacksonville, for petitioners.

Cary D Landis, Atty. Gen., and H. E. Carter and J. V. Keen, Asst Attys. Gen., for respondent.

OPINION

BUFORD Justice.

This is an original proceeding in habeas corpus instituted by petitioners wherein it is alleged that petitioners are unlawfully restrained of their liberty in custody of the sheriff of Duval county, Fla., under the pretended authority of a commitment reading as follows:

'In the name of the state of Florida, to the sheriff or amy constable of said county:

'Whereas Lloyd Layton has this day made oath before me in writing that one William H. Rogers, heretofore to-wit; on the twentieth day of June, in the Year of Our Lord, One thousand, nine hundred thirty-three in the County of Duval and State of Florida, for and in consideration of the sum of two hundred dollars in cash, lawful money of the United States of America to him in hand paid by one Louis Kurz, did then and there knowingly and unlawfully make, sign, execute, issue and deliver unto the said Louis Kurz, and he, the said Louis Kurz did then and there knowingly and unlawfully accept and receive from the said William H. Rogers a certain deed, instrument and writing under seal, wherein and whereby he, the said William H. Rogers did assign, transfer and convey unto the said Louis Kurz a certain mortgage, which said mortgage does not incorporate the certificated of indebtedness, then and there held and owned by and lawfully vested in the said William H. Rogers on certain realty situated in said County and State, without the payment then or at any other time of any tax levied by the State of Florida for and in respect of said deed, instrument and writing so assigning, transferring and conveying said mortgage, or for or in respect to the vellum, parchment or paper upon which such assignment is written and printed, and without affixing thereto and duly cancelling any stamp evidencing the payment of and tax thereon so levied and imposed by the State of Florida, contrary to the statutes of the State of Florida, in such cases so made and provided, and against the peace and dignity of the state of Florida; and whereas it appeared to me from an examination that there was just reason to believe that the said William H. Rogers and Louis Kurz were guilty of such offenses, and the said William H. Rogers and Louis Kurz, on being brought before me on a warrant, were required to enter into a recognizance, with sufficient security, in the sum of Fifty and no-100 Dollars, to appear at the next term of the Criminal Court of Record, to be held in and for said County, and not to depart the same without leave, and the said William H. Rogers and Louis Kurz having refused to find such security:

'You are hereby commanded forthwith to convey the said William H. Rogers and Louis Kurz to the common jail of said County, and to deliver them to the keeper thereof, who is hereby required to receive the said William H. Rogers and Louis Kurz into his custody in the said jail and to keep them safely there until they shall find security or be thence discharged by due course of law.

'Given under my hand and seal this 18th day of September, A. D. 1933.

'[Signed] J. C. Madison, [Seal] Justice of the Peace, 10th District.'

The record shows that the assignment referred to in the commitment was in the following language:

'Know all men by these presents:

'That I, Wm. H. Rogers, of Jacksonville, Duval County, Florida, party of the first part, in consideration of the sum of Two Hundred Dollars ($200.00), lawful money of the United States, to me in hand paid by L. Kurz of Jacksonville, Duval County, Florida, party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred and set over, and by these presents do grant, bargain, sell, assign, transfer and set over unto the said party of the second part a certain indenture of mortgage bearing date the fifth day of December, in the year One Thousand Nine hundred and twenty -five made by Lake Florida Corporation and recorded in Mortgage Book 274, page 393, public records of Duval County, Florida, upon the following described piece or parcel of land, situate and being in Duval County, State of Florida, to-wit:

'Lots twelve (12) and Thirteen (13), except the East Sixty (60) feet of said lots, Block One (1) of Harrison Reed's Sub-division of South Jacksonville, according to plat thereof recorded in Plat Book 1, page 4, of the former public records of Duval County, Florida;

'--together with the note or obligation described in said Mortgage; and the moneys due and to become due thereon, with interest from the fifth day of December 1927, to have and to hold the same unto the said party of the second part, his executors, administrators and assigns forever.

'In witness whereof I have hereunto set my hand and seal, the 20th day of June in the year one thousand nine hundred and thirty three.

[Notary Seal.]

'Wm. H. Rogers, [Seal]

'Signed, sealed and Delivered in the presence of

Zela Whitnell

Elizabeth Slade.'

It was duly acknowledged before a Notary Public.

This is a test case instituted for the purpose of procuring from this court an adjudication as to whether or not chapter 15787, Acts of 1931 (Ex. Sess.), known as the Documentary Stamp Tax Law of Florida, requires the placing of documentary stamps on assignments of mortgages when the certificate of indebtedness is otherwise shown in a separate instrument.

Paragraph 4 (not numbered) of Schedule A of section 1 of the act under consideration provides as follows:

'On promissory notes, non-negotiable notes, written obligations to pay money, assignment of salaries, wages, or other compensation, made, executed, delivered, sold, transferred, or assigned in the State of Florida, and for each renewal of the same on each $100.00 of the indebtedness or obligation evidenced thereby, 10¢. Mortgages which incorporate the certificate of indebtedness, not otherwise shown in separate instruments, are subject to the same tax at the same rate.'

Paragraph 5 (not numbered) of the same section provides as follows:

'On deed, instruments, or writings, whereby any lands, tenements or other realty or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to or vested in the purchaser or purchasers or any other person or persons, by his, her, or its direction, on each $100.00 of the consideration therefor, 10¢: Provided, that when the full amount of the consideration for the execution, assignment, transfer, or conveyance, is not shown in the face of such deed, instrument, document, or writing, then in such event the tax shall be at the rate of 10¢ for each $100.00 or fractional part thereof of...