Wells v. Thomas
| Decision Date | 05 January 1954 |
| Citation | 78 So.2d 378 |
| Parties | Susye Belle WELLS, as Administratrix of the Estate of H. H. Wells, deceased, and Susye Belle Wells and Mary Sue Wells Nolen, as sole surviving heirs of H. H. Wells, deceased; A. L. Wells, and C. B. Dunn, Appellants, v. Jefferson THOMAS, if living, and if dead, his unknown heirs, devisees andgrantees; Anne Hartley Atkinson Gailliard as the sole surviving heir at law ofW. M. Atkinson, deceased; Mrs. Alfred Tyler; John Poe Tyler; Rom Tyler; AnneTyler Pierpont;sole surviving heirs at law of Alfred Tyler, deceased; Bessie T. Savage, heirat law of W. T. Savage, deceased, and the unknown heirs of W. T. Savage,deceased; F. Willard Hyslop, if living, and if dead, his unknown heirs,devisees and grantees;Adele B. Harries, Gertrude Harries Wills and Bowden F. Harries, heirs at law ofG. M. B. Harries, deceased; T. J. McSween; Almon L. Denton; Gordon Denton; andNoah Denton, Appellees. |
| Court | Florida Supreme Court |
James N. Daniel, Chipley, and J. M. & H. P. Sapp, Panama City, for appellants.
Cornett, Turner, Duncan & Leath and Earl R. Duncan and William B. Leath, Panama City, for appellees.
In June 1951, appellants as plaintiffs filed an amended complaint in the Circuit Court of Bay County, naming appellees and others as defendants. The purpose was to quiet title to Tracts 1 and 2 U. S. Government Survey Township 4, South, Range 15 West. It was alleged that on May 1, 1944, C. N. Ashmore acquired a tax deed to Tract 1, which he recorded May 11, 1944, in Tax Book 5, page 34, and that on July 5, 1944, said C. N. Ashmore acquired a tax deed to Tract 2, which he recorded June 7, 1944, in Deed Book 88, page 371. C. N. Ashmore conveyed both tracts to H. H. Wells in trust for the other plaintiffs named herein. The amended complaint also alleges that C. B. Dunn, one of the plaintiffs, acquired title to part of Tract 2 on or about November 9, 1925, that in 1915 H. L. Grace acquired title to all of Tract 2 which he conveyed to H. H. Wells in 1925. It is further alleged that on September 10, 1928, after H. H. Wells and C. B. Dunn acquired their title, defendant F. Willard Hyslop obtained a tax deed to that part of Tract 2, located in Section 8, Township 4, South, Range 15 West which he recorded October 18, 1928 in Tax Book 2, at page 400 and which is the only lands involved in this appeal. We are concerned at this time with the validity of the C. N. Ashmore tax deed embracing Tract 2. Hyslop filed an amended answer and a motion for summary judgment. The latter was granted and this appeal was prosecuted. H. H. Wells died after the suit was instituted. Susye Belle Wells, his widow and administratrix and Mary Sue Wells Nolen, his daughter, were substituted as parties plaintiff and sole surviving heirs.
The primary question presented challenges the order of the chancellor granting Hyslop's motion for summary judgment and his refusal to grant a new trial.
The answer to this question turns on the validity of Ashmore's tax deed dated June 5, 1944. The motion for summary judgment was grounded on the contention that Ashmore's tax deed was based on certain tax certificates, the numbers of which were recited in one place in the notice while the description of the land was recorded in a different place without any means of identifying the certificate with the description of the land. The chancellor so found and adjudged the Ashmore tax deed fatally defective on authority of Kester v. Bostwick, 153 Fla. 450, 15 So.2d 208.
In Goodman v. Carter, 158 Fla. 112, 27 So.2d 748, this court held that Kester v. Bostwick had to do with a tax deed issued under Chapter 17457, Acts of 1935, F.S.A. § 194.15 et seq., while Goodman v. Carter was controlled by Chapter 20722, Acts of 1941, as amended by Chapter 22079, Acts of 1943, now Section 192.21, Florida Statutes 1953, F.S.A., which was then the law controlling the issuance of tax deed rather than Chapter 17457, Acts of 1935, the law controlling Kester v. Bostwick. The court was accordingly in error in holding that the case at bar was governed by Kester v. Bostwick. See also Sudduth v. Hutchison, Fla., 42 So.2d 355 and Tindel v. Griffin, 157 Fla. 156, 25 So.2d 200.
Aside from this, if the alleged defects in Ashmore's tax deed could be said to vitiate his title, they were cured by Chapter 23827, Acts of 1947, now Section 192.48, Laws of Florida 1953, F.S.A. The purpose of this Statute was to cure defects in tax deeds provided they had been recorded one year and were subject to taxes which had not been paid. Ashmore's tax deed was recorded in June 1944; he was not in possession at the time nor at any subsequent time. Tindel v. Griffin and Sudduth v. Hutchison, supra. See also Taff v. Hodge, 132 Fla. 642, 182 So. 230 and Coult v. McIntosh Inv. Company, 133 Fla. 141, 182 So. 594. Prior to the passage of Chapter 23827, Section 192.48, Laws of Florida, mailing of notice of application for tax deed was jurisdictional and failure to do so voided the deed. Since the passage of this act we construe the law to be satisfied by merely publishing the notice of application for tax deed.
In this connection it is not amiss to point out that Section 192.21, Florida Statutes, requires that 'all owners of property shall be held to know that taxes are due and payable thereon annually, and are hereby charged with the duty of ascertaining the amount of such tax and paying the same before the first day of April of the year following the year in which such taxes were assessed'. It appears from the record that Wells paid taxes on the lands in question for the years 1929, 1930, and 1931 and secured his deed from Ashmore in 1944. When the tax deed to Ashmore was issued the records in the office of the Clerk of the Court would have shown that the last taxes had been paid by Wells in 1931. Wells continued to pay taxes after securing deed from Ashmore, while Hyslop secured his tax deed in 1928 and made no attempt to pay taxes for more than twenty years. We do not think he can successfully contend that his title is good against unpaid taxes on the ground that no tax deed was applied for during the years of his silence and indifference. To so hold would be contrary to all the legislative pronouncements on the subject during the last twenty-five years.
Other questions raised have been considered but they are not important and we do not explore them. It is our view that the judgment appealed from is violative of appellant's rights and contrary to legislative and judicial pronouncements on the subject. It is therefore reversed with directions to enter final judgment in harmony with the views expressed in this opinion.
Reversed.
On Rehearing
In June 1951, appellants as plaintiffs filed an amended complaint in the Circuit Court of Bay County, naming appellees and others as defendants. The purpose was to quiet title to Tracts 1 and 2 U. S. Government Survey Township 4, South, Range 15 West. It was alleged that on May 1, 1944, C. N. Ashmore acquired a tax deed to Tract 1, which he recorded June 11, 1944, in Tax Book 5, page 34, and that on June 5, 1944, said C. N. Ashmore acquired a tax deed to Tract 2, which he recorded June 7, 1944, in Deed Book 88, page 371. C. N. Ashmore conveyed both tracts to H. H. Wells in trust for the other plaintiffs named herein. The amended complaint also alleges that C. B. Dunn, one of the plaintiffs, acquired title to part of Tract 2 on or about November 9, 1925, that in 1915 H. L. Grace acquired title to all of Tract 2 which he conveyed to H. H. Wells in 1925. It is further alleged that on September 10, 1928, after H. H. Wells and C. B. Dunn acquired their title, defendant F. Willard Hyslop obtained a tax deed to that part of Tract 2, located in Section 8, Township 4, South, Range 15 West which he recorded October 18, 1928 in Tax Book 2, at page 400 and which is the only lands involved in this appeal. We are concerned at this time with the validity of the C. N. Ashmore tax deed embracing Tract 2. Hyslop filed an amended answer and a motion for summary judgment. The latter was granted and this appeal was prosecuted. H. H. Wells died after the suit was instituted. Susye Belle Wells, his widow and administratrix and Mary Sue Wells Nolen, his daughter, were substituted as parties plaintiff and sole surviving heirs.
The primary question presented challenges the order of the chancellor granting Hyslop's motion for summary judgment and his refusal to grant a new trial.
The answer to this question turns on the validity of Ashmore's tax deed dated June 5, 1944. The motion for summary judgment was grounded, inter alia, on the contention that Ashmore's tax deed was based on certain tax certificates, the numbers of which were recited in one place in the notice while the description of the land was recorded in a different place without any means of identifying the certificate with the description of the land. The Chancellor so found and adjudged the Ashmore tax deed fatally defective on authority of Kester v. Bostwick, 153 Fla., 450, 15 So.2d 208.
In Goodman v. Carter, 158 Fla. 112, 27 So.2d 748, this court held that Kester v. Bostwick had to do with a tax deed issued under Chapter 17457, Acts of 1935, F.S.A. § 194.15 et seq., while Goodman v. Carter was controlled by Chapter 20722, Acts of 1941 (amended in 1943 by Chapter 22079 in a manner not here relevant). The 1941 Act, as amended, is the present form in which Section 192.21, Florida Statutes 1953, F.S.A., appears on our statute books. In the Goodman case we held that the defect in the notice here complained of was insufficient to invalidate the tax deed based thereon. It must be held, therefore, under the authority of Goodman v. Carter, supra, that the lower court erred in invalidating the Ashmore 1944 tax deed for the reason stated in its order, referred to...
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