Townsend v. Beck

• Decision Date: 13 June 1939
• Citation: 192 So. 390,140 Fla. 553
• Parties: TOWNSEND et al. v. BECK.
• Court: Florida Supreme Court

192 So. 390

140 Fla. 553

TOWNSEND et al. v. BECK.

Florida Supreme Court, Division A.

June 13, 1939

Supplemental Opinion November 28, 1939.

Suit by Marie M. Beck against J. W. Townsend and others to foreclose the lien of a tax deed. From an order overruling motion to dismiss bill of complaint and an order striking portions of defendants' answer, the defendants appeal.

Reversed with directions that cause be dismissed.

CHAPMAN and THOMAS, JJ., dissenting on supplemental opinion. Appeal from Circuit Court, Marion County; J. C. B Koonce, judge.

COUNSEL

Knight & Knight, of Starke, for appellants.

D. R Smith, of Ocala, for appellee.

BUFORD Justice.

The appeal brings for review an order overruling motion to dismiss bill of complaint and also an order striking portions of defendants' answer.

The suit was instituted on the 21st day of April, 1938, in the Circuit Court of Marion County, Florida, to foreclose the lien of a tax deed, which tax deed was issued on the 29th day of October, 1935.

The suit is predicated under the provisions of Chapter 14572 Acts of 1929, Ex. Sess. Except for the provisions of that chapter a tax deed was considered and held a muniment of title and not the evidence of a lien. The status of a tax deed is the evidence of a lien and the power to foreclose the same was found in Chapter 14572 and not elsewhere, and a foreclosure of a lien so evidenced was specifically authorized by section 13 of the 1929 act, supra.

Chapter 17442, Acts of 1935, repealed all the provisions of Chapter 14572 under which a tax deed could be held as the evidence of a lien and foreclosed in equity. That chapter became effective upon its approval by the Governor on May 21st, 1935, which was prior to the issuance of the tax deed involved in this case.

It, therefore, follows that when the holder of a tax certificate elected to procure a tax deed based on certificates which evidenced a lien foreclosable in a court of chancery under its general equity jurisdiction to foreclose liens, he abandoned his right of election to foreclose the lien and elected to take a new and independent title subject to the control of the law as it existed at the time of the issuance of the tax deed.

So it is, the complainant had no standing in a court of equity to maintain the suit and same should have been dismissed.

For the reasons stated, the order appealed from is reversed with directions that the cause be dismissed.

So ordered.

TERRELL, C.J., and THOMAS, J., concur.

WHITFIELD, J., concurs in opinion and judgment.

BROWN and CHAPMAN, JJ., not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.

Supplemental Opinion

BUFORD Justice.

The Court has sua sponte recalled the mandate issued pursuant to our opinion filed herein on June 13, 1939, because it may appear to the Bench and Bar that in using the language, viz:

'The suit is predicated under the provisions of Chapter 14572, Act of 1929, Ex. Sess. Except for the provisions of that chapter a tax deed was considered and held a muniment of title and not the evidence of a lien. The status of a tax deed is the evidence of a lien and the power to foreclose the same was found in Chapter 14572 and not elsewhere, and a foreclosure of a lien so evidenced was specifically authorized by section 13 of the 1929 Act, supra.

'Chapter 17442, Acts of 1935, repealed all the provisions of Chapter 14572 under which a tax deed could be held as the evidence of a lien and foreclosed in equity. That Chapter became effective upon its approval by the Governor on May 21st 1935, which was prior to the issuance of the tax deed involved in this case,' the Court may have overlooked the provisions of paragraph 2 of Section 794 R.G.S., as amended by Chapter 12409, Acts of 1927, being brought forward as Sec. 1020, C.G.L.

Subsequent to such order we requested counsel to submit briefs on the question of the constitutionality of the statute, supra. The same have been filed and considered.

This statutory provision was not overlooked but has been disregarded by this Court because the provision, 'Any holder of a tax deed or of a tax certificate shall have a lien thereunder for the amount paid therefor upon the land described therein and such lien may be enforced and foreclosed by suit in equity as provided by law for the enforcement of statutory liens.', as contained in the 1927 Act was not within the purview of the title of the Act. The title of that Act is:

'An Act to Amend Sections 777, 794 and 795 of the Revised General Statutes of Florida, Relating to Notice of Application for Tax Deed, Manner of Obtaining Tax Deed, Limitation of Time in Which Suit May be Brought, and Refunding of Taxes and Other Expenses Where Land is Recovered from Tax Deed Holder.'

Section 794, R.G.S., is as follows:

'Limitation of time in which suits may be brought to recover land in actual possession of purchaser, etc.--When the purchaser of land at a tax sale goes into actual possession of such land no suit for the recovery of the possession thereof shall be brought by a former owner or claimant, his heirs or assigns, or his or their legal representatives, for the recovery of the possession of such land, unless such suit be commenced within four years after the purchaser at such tax sale, goes into possession of the land so bought; and the purchaser at such tax sale, where said real estate is in the adverse actual possession of any person or persons, shall not be entitled to recover possession of such real estate brought at such tax sale unless suit for such recovery shall be brought within one year from the date of acquiring the right to such tax title; and where any purchaser of any real estate situated in this State prior to the passage of this act has not entered into and taken actual possession of the same he shall, within one year after the passage of this act, bring suit for the recovery of the actual possession of the real estate described in such tax title, and in default thereof said tax title shall become void and of no effect: Provided, That infants, persons of unsound mind or under guardianship or imprisonment may commence suit or proceedings within three years after...