Stieff v. Hartwell

• Decision Date: 10 June 1895
• Citation: 17 So. 899,35 Fla. 606
• Parties: STIEFF v. HARTWELL.
• Court: Florida Supreme Court

17 So. 899

35 Fla. 606

STIEFF v. HARTWELL.

Florida Supreme Court

June 10, 1895

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

Action in ejectment by George W. Stieff against S. A. Hartwell. Defendant had judgment, and plaintiff appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. Under the statute of 1887 (section 57, c. 3681, Laws Fla.) it is permissible for the clerk of the circuit court to include in one tax deed different pieces or parcels of land which belonged to different owners and are included in different certificates, where all of such pieces or parcels are bought at the same tax sale by the same purchaser, and the same were singly and separately sold, and not sold for a gross or lumping sum, and the deed describes each tract separately and states the price for which each was sold.

2. A tax assessment is not invalid because not completed during the year for which it was made. As a general rule, a provision in a statute naming the time when an act is to be done in the assessment and collection of taxes is a direction, and not a limitation.

3. Where no objection is made to the form of the warrant under which a sale for taxes is made, the prima facie presumption of regularity which the statute attaches to the deed sufficiently indicates the regularity of such warrant in all respects.

4. A tax deed, when offered in evidence, was objected to upon the ground that the advertisement of the tax sale upon which the deed was made was not recorded within 10 days after the sale as required by law. It was admitted by the parties that such record was made 13 days before the sale, but the record of the case here does not show whether such record of the advertisement was made before or after all the insertions of the same in the newspaper, as required by law. Held, that the record of such advertisement might be made before the sale but not until after the insertion of the same in the newspaper the number of times required by the statute. Construing the phrase, 'within ten days after said sale,' as a limitation, a record made 13 days before the sale was within the limitation.

5. The state acquires no title by the sale of real estate to a city for city taxes; and a deed, in pursuance of such a sale, in which the state is the grantor, is inoperative to convey any title to the grantee.

COUNSEL Arthur F. Odlin, for appellant.

W. R Anno, for appellee.

OPINION

LIDDON J.

The appellant (plaintiff below) brought an action of ejectment against the appellee (defendant below) to recover a lot in the city of Orlando. The defendant pleaded not guilty. The case, by consent of parties, was submitted to the court without a jury, and judgment was rendered for defendant. The plaintiff relied upon a tax deed executed September 11, 1890, in pursuance of a sale of the premises on September 4, 1889, for the state and county taxes due thereon for the year 1888. The defendant, in support of his plea, offered a master's deed, of a date subsequent to the tax deed of the plaintiff, made upon a foreclosure sale of the property in dispute, and also a tax deed to the premises made February 21, 1891, based upon a sale made August 5, 1889, for taxes due the city of Orlando for the year 1888.

Several objections were urged against the validity of the plaintiff's tax deed when it was offered in evidence at the trial. These objections were overruled, and the deed admitted in evidence. We find that none of these objections were valid, and, the objections being decided in favor of the appellant, we would not consider them further, except that to give our opinion upon the matters involved in them may be useful to the parties in a future trial, as, for reasons hereinafter stated, the judgment must be reversed, and a new trial awarded.

The objections in question, as shown by the record, were three in number, and as follows: (1) Because the said deed conveyed eight other tracts of land in the same instrument, not proven to be lands of this defendant, while the law contemplates a separate deed for each tract sold separately, of different owners. (2) Because the assessment of said lands so sold was not completed within the year for which the levy was made, viz. the year 1888, but the assessment was not completed until February 6, A. D. 1889. (3) Because the record of the advertisement of the said tax sale, required by law to be made within 10 days after the sale, was never so made.

The first objection does not allege any sale in gross, or for a lumping sum, of several tracts of land. The statute under which the deed was made (section 57, c. 3681, Acts 1887) provides that 'on the presentation of such certificate or certificates of sale to the clerk of the circuit court, * * * he shall execute to the purchaser, or his heirs or assigns, a deed to the land therein described,' etc. In the same section is the form of deed prescribed by law, and which, by being incorporated into the statute, becomes a part of it. This form makes provision for one 'piece or parcel,' or for several 'pieces or parcels,' and provides that, 'if more than one tract or parcel was sold to such purchaser,' the several sums shall be mentioned, 'describing each tract purchased separately and state the sum for which each was sold.' An examination of the deed objected to shows that, while it does convey eight other tracts of land besides the one in dispute, and not shown to belong to the same owner, as stated in the objection, it shows that all of the tracts were sold to one purchaser, it specifically and separately describes each tract purchased, and states the sum for which each was sold, and is in every respect in strict compliance with the form contained in the statute. The section of the statute referred to makes the deed prima facie evidence of the regularity of the proceedings from the valuation of the land by the assessor to the date of the deed, inclusive. There is nothing in the objection to show that each piece and parcel of the land was not separately and singly sold to the same purchaser at the same general tax sale; and, if they were sold in such manner, there is no objection to their being all incorporated in one deed. The presumption of regularity created by the statute, in the absence of contrary allegation or proof, is sufficient, showing that the lands embraced in the deed were legally and properly sold. We are not alone and unaided in our construction of the matter. The following authorities, among many others, sustain the views announced: 2 Desty, Tax'n, pp. 973, 974; Towle v. Holt, 14 Neb. 221, 15 N.W. 203; Watkins v. Inge, 24 Kan. 612.

The second objection was not well taken. An assessment is not invalid because not completed during the year for which it is made. The statute (section 32, c. 3681, Laws 1887) provides that 'if for any cause' the 'warrant and assessment rolls shall not be delivered to the tax collector on or before the first Monday of November of any year, or the tax collector shall fail or omit to obey the command thereof as therein required, it shall be the duty of the county commissioners to issue another warant in the same form as the above provided, except that they shall name and appoint therein such day as in their judgment may be proper, not exceeding sixty days from the first Monday in March, by...