Stubbs v. Cummings

• Decision Date: 19 August 1976
• Docket Number: No. BB--188,BB--188
• Citation: Stubbs v. Cummings, 336 So.2d 412 (Fla. App. 1976)
• Parties: Margaret Elizabeth Johnson STUBBS, as Executrix of the Will of Bella Hicks, Deceased, Appellant, v. J. Paul CUMMINGS and W. A. Struck, Appellees.
• Court: Florida District Court of Appeals

Page 412

336 So.2d 412

Margaret Elizabeth Johnson STUBBS, as Executrix of the Will of Bella Hicks, Deceased, Appellant, v.J. Paul CUMMINGS and W. A. Struck, Appellees.

No. BB--188.

District Court of Appeal of Florida, First District.

Aug. 19, 1976.

C. Roger Vinson, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellant.

Paul L. Cummings, Pensacola, for appellees.

WILLIS, BEN C., Associate Judge.

The appellant, plaintiff in the trial court, is the niece of Bella Hicks, deceased, and the executrix of her will.At the time of her death on May 9, 1972Bella Hicks held title to a 4 2/3 acre parcel, identified as 'Lot 4', which was one of eight lots laid out in a recorded plat, which were platted in 1936 as a means of partitioning a parcel of about thirty-eight acres which had been the property of the late Grandison Hicks, the father of Bella Hicks.In the partitioning, Lot 4 was acquired by Nellie B. Reeves, sister of Bella Hicks.Mrs. Reeves subsequently died and this property, by operation of law, passed to her husband and sole heir, Sampson M. Reeves.Mr. Reeves died in August 1958 and devised Lot 4 to his sister-in-law, Bella Hicks.

At the time of the partitioning in 1936Bella Hicks received 'Lot 6' which lies adjacent to 'Lot 4'.However, 'Lot 6' is not involved in this case.

It appears that, notwithstanding the transfer of title from Nellie B. Reeves to her husband and thence to Bella Hicks, 'Lot 4' was carried on the county tax rolls in the name of Nellie B. Reeves, and the tax statements were sent each year at all times pertinent to this case to Nellie B. Reeves.

Apparently until 1968 the taxes on Lot 4 were paid but in that year they were unpaid and a tax sale certificate was issued which was purchased by Edsel or Virginia McNiel in February 1970.On September 4, 1972 a tax deed was issued to the defendants.

On September 3, 1968Bella Hicks was declared to be legally incompetent, but no guardian of her person or property was ever appointed.She lived until May 9, 1972 and after her death the plaintiff was appointed executrix of her estate on December 29, 1972.It is significant that Bella Hicks was incompetent during the period when the taxes fell delinquent, and the tax deed issued after her death but before her executrix was appointed.All notices relating to the delinquent taxes and the issuance of the tax deed were sent by the county official involved to Nellie B. Reeves, who had been dead at least fourteen years.

It is not shown that the County Comptroller or any other officer or personnel having any responsibilities in the procedures leading to the issuance of the tax deed had any personal knowledge of the title being vested in Bella Hicks or that she had been adjudged an incompetent.

The proceedings under review were initiated in the trial court by a complaint by the plaintiff executrix against the defendant tax deed holders which sought, among other things, to set aside the tax deed on the ground that the legal owner of the property, Bella Hicks, had been judicially declared incompetent prior to the attachment of the lien for taxes and at all times thereafter until her death, and that the tax deed issued when she was deceased and her estate was without a personal representative.The defendants answered the complaint and the parties stipulated to the facts which were presented to the trial judge on the legal questions involved.

The trial court entered a final judgment dismissing the complaint with prejudice.It was there mentioned that notice of the application for tax deed was given to Nellie B. Reeves, who appeared upon the tax rolls as the owner of record and that this is as is 'required by Section 197.505, Florida Statutes, 1971'.It was further stated:

'. . . No question is raised that the statutes at the time of the issuance of the deed or prior thereto were fully and completely followed by the Comptroller.In the absence of exceptions in the taxing statutes, the same rules which apply to other persons apply to incompetents and infants.Fleming v. Hillsborough County, Fla.App., 107 So.2d 162, 166.'

The appellant contends that the procedures followed by which the issuance of the tax deed divested legal ownership of real property from an unprotected incompetent constitutes a taking without due process of law in violation of both federal and state constitutions.

The plaintiff does not contend that there has been any failure to follow the procedures prescribed by applicable statutes for the issuance of the tax deed.However, she does assert that there is an implied exemption to the finality of tax deeds by the language in Section 197.620, Florida Statutes, 1971.This section refers to the application of Section 197.610and197.615, each dealing with a 20 year statute of limitations in favor of a tax deed holder so as to bar actions by a former owner.Section 197.620 provides that the other two sections shall apply whether there has or has not been any actual possession of the tax deed premises by the tax deed grantee, his heirs, etc.Such sections are directed to be construed as 'Prospective, retroactive, and cumulative of the rights and benefits of grantees under tax deed and those claiming under them; provided, said sections shall not apply to infants, persons non compos mentis, or under other disability to maintain suit until one year after removal of such disability'.

This reference to persons under disability is in connection with the operation of the statute of limitation prescribed in Sections 197.610and197.615, and is not pertinent to the procedures for the issuance of tax deeds.

Therefore, the question involved is whether or not due process of law is afforded in the issuance of the tax deed in this case.It is contended that the United States Supreme Courtcase of Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021(1956) is controlling and compulsive of a reversal here.

The Covey case involved a foreclosure and sale of real property for nonpayment of taxes.The owner was mentally incompetent and notice of the foreclosure was given to her when she was without the protection of a guardian.Subsequently, a committee was appointed for the incompetent, but the state courts denied the committee's motion to open the default in the foreclosure proceedings.The incompetency of the property owner was actually known to the town officials.The notice of foreclosure was given pursuant to statutes by publication, by posting and by mailing.Such notice is to the effect that, unless the amount of unpaid tax liens together with interest and penalties are paid within 7 weeks, or an answer filed in 20 days, the right of redemption from foreclosure shall be cut off.These provisions purport to be applicable to and valid and effective with regard to all defendants, even though one or more of them be infants, incompetents, absentees, or nonresidents of the state.

The Court observed the established principle that:

'An elementary...