State v. Jordan

• Decision Date: 14 June 1895
• Citation: 17 So. 742,36 Fla. 1
• Parties: STATE ex rel. WARWICK v. JORDAN, Clerk.
• Court: Florida Supreme Court

17 So. 742

36 Fla. 1

STATE ex rel. WARWICK v. JORDAN, Clerk.

Florida Supreme Court

June 14, 1895

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

Petition by Charles C. Warwick, trustee, for mandamus to compel J. B Jordan, clerk, to issue a tax deed. From an order sustaining a demurrer to complaint, plaintiff appeals. Reversed.

Syllabus by the Court

SYLLABUS

The holder, by proper assignment, of several tax-sale certificates legally issued to the comptroller at a tax sale of lands in 1889, under the act of 1887 (chapter 3681), is entitled, after the expiration of the time provided for the redemption of lands sold for taxes, and the same have not been redeemed, to have the proper circuit clerk issue to him one tax deed including the various parcels of lands described in the different certificates.

COUNSEL

Arthur F. Odlin and Hamlin & Stewart, for appellant.

Appellant filed a petition for mandamus in January, 1891, against appellee, as clerk of the circuit court of Volusia county, and therein alleged, substantially that on the 8th day of May, 1889, the tax collector of said county offered for sale, in accordance with law, a large number of tracts of land situated in said county, for the unpaid taxes due thereon, together with interest and costs as fixed by law, for the year 1888, and, there being no bidder for a large number of said tracts, the collector, in accordance with law, struck off a large number of the same to the state of Florida, and issued certain certificates of sale to the state, in the name of the comptroller; that on the 12th of March, 1890, one R. H Ramsey applied to the comptroller for the purchase of 142 of said certificates, and, upon payment to the comptroller of the amount to which the state was legally entitled on the certificates, the comptroller then duly assigned and transferred to said Ramsey said 142 certificates, all which would fully appear upon on an inspection of said certificates, which appellant was willing to produce as the court might desire; that said Ramsey on the 26th of March 1890, for value received, assigned and transferred the said 142 certificates to appellant, and that he was the owner and holder of the same. Further, that appellant caused to be prepared a tax deed, in legal form, embracing the lands described in said tax certificates, to which he was and is entitled to have a tax deed, and on the 16th day of January, 1891, before the filing of the petition, through his attorney, he exhibited said deed to appellee, and requested him, as said clerk, to execute the same, at the same time presenting to him said tax certificates, and tendering to him $1.50, legal money of the United States,--the amount fixed by law for executing said deed, and to pay for the acknowledgment thereof; that none of the lands described in said tax deed have been redeemed according to law from said tax sale, the time provided by law for the redemption of said lands had expired, and it had not been shown that the taxes for the year 1888 had been paid before the sale; that appellee then and there refused to accept the money tendered him, and refused to execute said tax deed, or himself to prepare a proper tax deed conveying the lands described in said tax certificates to appellant, unless he would pay to him (appellee) the sum of $100, which was grossly in excess of his legal fees. It was also alleged that the said tax deed prepared as aforesaid was correct and legal in every respect, and a proper deed for appellee to execute, and that appellant was entitled to have the same, or a similar deed, executed by appellee; that the said deed was in possession of appellant's attorney, and the same would be produced as the court should direct, and appellant stood ready to pay to appellee the money tendered him for executing and acknowledging said deed.

The prayer is for the issuance of an alternative writ of mandamus in accordance with the allegations of the petition.

The record shows that the case was disposed of on demurrer of appellee to the petition. The grounds of demurrer are: (1) That the allegations of the petition do not show any duty or obligation on the part of appellee to make and execute to appellant the deed therein set forth. (2) The act of the legislature under which appellant demands the execution of said deed does not require or authorize appellee to execute said deed. (3) Because the legal fees of appellee, as clerk, as provided by law, for issuing tax deeds upon the certificates set out in the petition, were $142 for the execution of said deeds, and the further sum of $71 for the certificates of acknowledgment of the same, and appellant offered to pay, and tendered, only the sum of $1.50. (4) Because it appears by the petition that the lands for which appellant demanded a deed were not the lands of one person, but were the lands of divers persons, and had been sold for the nonpayment of taxes as the lands of divers persons. This demurrer was sustained, and final judgment rendered in favor of appellee, from which an appeal was taken.

OPINION

MABRY, C.J. (after stating the facts).

The alternative writ in mandamus proceedings occupies the place of a declaration in an ordinary legal suit, and when that writ has issued the issues of law or fact are made thereon. In the present case the demurrer was to the petition, but, as it appears that it was considered in the trial court in the nature of an alternative writ, we will so treat it here.

The right to the tax deed demanded by appellant arises under chapter 3681, Laws 1887,--the statute under which the tax sales here involved were made. After the issuance of tax-sale certificates, as provided for in this act, it is provided in the fifty-seventh section that 'on the presentation of such certificate or certificates of sale to the clerk of the circuit court or his deputy, after the expiration of time provided by law in this act for the redemption of lands sold as aforesaid, unless the same have been redeemed, he shall execute to the purchaser, or his heirs or assigns, a deed of the land therein described, unless it shall be shown that the taxes for that year had been paid before the sale, which deed shall be prima facie evidence of the regularity of the proceedings from the valuation of the land by the assessors to the date of the deed, inclusive, and the consideration expressed in the deed may be the same as is expressed in the certificate of sale, together with the taxes, costs and interest required by law, which deed shall be substantially in the following form.' The form of the deed is then given. Considering the petition as showing appellant to be the assignee of 142 tax certificates issued, in accordance with law, to the comptroller, in 1889, on tax sales for the nonpayment of taxes assessed against the lands therein described for the year 1888, and that the time for the redemption of the lands from such sales expired without such redemption having been made, the controlling question presented is whether the appellant is entitled to have appellee, as clerk of the circuit court, execute one tax deed, including all the lands described in the several certificates mentioned. Where the statute under which a tax sale is made expressly directs or authorizes the deed to include lands embraced in one or more different certificates of sale, there can be no question as to the right of the holder of several certificates, otherwise entitled to a deed thereon, to have the lands therein described included in one deed, with proper recitals as to the sale of each tract.

The decisions cited by counsel for appellant are based upon statutes expressly providing that the tax deed may include separate and disconnected tracts of land, and, if the statute of 1887 authorizes such a deed as is contended for here appellant's contention should be sustained. Objection was made to a tax deed, on the ground that it purported to convey several parcels of land, in the case of ...