State v. Bradshaw

• Decision Date: 18 May 1897
• Citation: 22 So. 296,39 Fla. 137
• Parties: STATE ex rel. STIEFF v. BRADSHAW, Circuit Court Clerk.
• Court: Florida Supreme Court

22 So. 296

39 Fla. 137

STATE ex rel. STIEFF v. BRADSHAW, Circuit Court Clerk.

Florida Supreme Court

May 18, 1897

Appeal from circuit court, Orange county; John D. Broome, Judge.

Application by the state, on the relation of George W. Stieff, for a writ of mandamus to J. N. Bradshaw, clerk of the circuit court of Orange county. Writ denied, and relator appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. Mandamus lies against clerks of the circuit courts to enforce the execution of tax deeds, upon tax certificates presented after the period of redemption has expired; the holders thereof having complied with all conditions entitling them to such deeds.

2. The tax collector of the city of Orlando had power to sell lands for nonpayment of taxes duly assessed thereon by said city for the year 1889, and to issue certificates to the purchasers at such sale; and an assignee of such certificates can, by mandamus, compel the clerk of the circuit court of Orange county to issue a tax deed upon such certificates after the period of redemption has expired, and the applicant has complied with all conditions entitling him to such deed.

3. Sections 7, 8, c. 4011, Acts 1891, are invalid, as impairing the obligation of the contract, when applied to tax certificates originally issued to a governmental agency, but which, at the time said act took effect, had been, for a valuable consideration, legally assigned to, and which were then owned by, a private individual.

COUNSEL

Arthur F. Odlin, for appellant.

On August 10, 1891, relator filed in the circuit court of Orange county his petition for mandamus, wherein it was alleged that on August 4, 1890, one S. S. Puckett, as tax collector of the city of Orlando, in Orange county, offered certain real estate for sale according to law in said city for the nonpayment of taxes assessed against the same for the year 1889, together with the costs and charges due therewith which taxes were then and there due said city of Orlando that the sale had been advertised according to the statutes of Florida and the ordinances of the city; that at such sale the city of Orlando became the purchaser, there being no other bidder therefor, and the city, for the sum of $48.80 received a certificate of sale numbered 83; that on August 2, 1891, relator purchased from said city the said tax certificate, by paying to the city clerk $61, and the city clerk then and there, under the seal of the city, transferred and assigned the certificate to relator; that on August 7, 1891, relator, by his attorney, presented to respondent, at his office in the courthouse, in Orlando, the tax certificate aforesaid, and requested him to execute to relator a tax deed to the land described in the certificate, at the same time tendering him

$1.50 in lawful money, as the legal fees for executing the deed, and taking respondent's acknowledgment to same when executed; that there was no proof before respondent that the land embraced in the certificate was not subject to the tax for which it had been sold, nor that it had been redeemed from the sale, nor did respondent give any valid reason for not accepting the money tendered and executing the deed demanded, but he did refuse to accept the money or to execute the deed; that the relator was still the owner and holder of the tax certificate; that it was then in his possession ready to be produced upon direction of the court; that it was and is the legal duty of respondent to execute a tax deed to relator upon said tax certificate as of August 7, 1891; that no one except respondent could legally execute the deed, and relator was without remedy except by mandamus. The prayer of the petition was for a writ of mandamus directed to respondent in his official capacity, commanding him forthwith to execute as of August 7, 1891, and deliver to relator, a tax deed in due form of law, conveying the land described in the certificate, upon presentation of the certificate and payment of the sum of $1.50 for fees as aforesaid, or to show cause on a day named why he had not done so. The tax certificate and assignment thereof, referred to in the petition and made a part thereof, were in the following language:

'State of Florida, County of Orange, City of Orlando--ss. No. 83.

'Office of the City Tax Collector.

'I, S. S. Puckett, collector of taxes of the city of Orlando, in the state of Florida, do hereby certify that I did, at public auction, pursuant to notice given by law as required, on this 4th day of August, A. D. 1890, sell to city of Orlando the lands herein described, for the sum of forty-eight dollars and eighty cents, said sum being the amount due and unpaid for taxes, costs, and charges on the described lands, for the year of our Lord one thousand eight hundred and eighty-nine; that city of Orlando or its assigns will therefore be entitled to a deed of conveyance of such lands in accordance with law, unless the same shall be redeemed within one year by payment of said amount, with interest at the rate of twenty-five per cent. per annum. Said lands are described as follows, to wit: Lots 5 and 6, T. W. Shine's subdivision E, part lot 1, block 37, Reid's Add. to Orlando, in the county of Orange, and assessed at four thousand dollars and ----- cents.

'Witness my hand at Orlando, this 4 day of Aug., 1890.

S. S. Puckett,

'Tax Collector of the City of Orlando.

'(J. S. Lewis.)

'Certificate No. 83. Sale of August 4th, 1890.

'Assigned to G. W. Stieff on payment made in the sum of forty-eight & 80/100 dollars, together with interest in the sum of twelve & 20/100 dollars.

'Witness my hand and seal of city, this 2nd August, 1891.

'James K. Duke, City Clerk.

'[Seal of City of Orlando.]'

On August 10, 1891, the circuit judge indorsed the petition: 'Let alternative writ issue as prayed for.' On August 11, 1891, respondent indorsed the petition: 'I hereby waive the issue and service of an alternative writ of mandamus, and consent that this petition shall stand as such alternative writ; and I agree to file answer thereto August 13, 1891. J. N. Bradshaw, Clerk.' On August 12, 1891, respondent moved to 'quash the petition, which, by agreement of the parties, stands as an alternative writ of mandamus, because the facts therein stated are insufficient in law to entitle the relator to the relief prayed therein.' On August 17, 1891, the court made an order that the petition was insufficient, and rendered judgment quashing the petition, and discharging respondent without day, from which judgment this appeal was taken, on August 18, 1891.

OPINION

CARTER, J. (after stating the facts).

This court has more than once recognized the propriety of enforcing by mandamus the execution of tax deeds by clerks of the circuit courts upon tax certificates presented after the period of redemption has expired, the holders thereof having complied with all conditions entitling them to such deeds. State v. Jordan, 36 Fla. 1, 17 So. 742; State v. Bradshaw, 35 Fla. 313, 17 So. 642; Hull v. State, 29 Fla. 79, 11 So. 97. And there can be no doubt that mandamus is the proper remedy in such cases. 2 Blackw. Tax Titles, § 734; Black, Tax Titles, § 388.

Respondent though represented by an array of eminent counsel i...