Tangeman v. Sjoblom Et Ux.

Whitfield, P. J. In a bill of complaint by Anna L. Tangeman, widow, against A. E. Sjoblom and wife, it is alleged in substance that complainant is the true owner in fee simple of described land; that eoinplainant took possession of the land under a conveyance to her in 1901 by Geo. L. Bouse and wife and remained in possession until deprived of the possession unlawfully by the defendant A. E. Sjoblom in 1925; that on November 22, 1918, the clerk of the circuit court for Seminole County, Florida, executed to A. E. Sjoblom tax deeds conveying the land, based on tax sale certificates of June 3, 1907, for unpaid taxes for 1906; that the tax sale was as the property of Anme L. Tangermcm; that such deeds are void because (a) the property was not assessed in, the name of the owner o'r as “unknown;” (b) no notice was mailed to Anna L. Tangeman the owner of the property advising her of any application for a tax deed; (c) no notice of application of A. E. Sjoblom for a tax deed on said land was ever received or had by complainant, the owner of the land, and the persoh. last paying taxes thereon; (d) the purchaser did not go into actual possession of the land within one year from the date of the tax deeds; (e) said land at the time the tax deed was issued, was in the actual adverse possession of the complainant, and the purchaser under the tax deed did not bring suit within one year to obtain possession of the land; that although tax deeds were void, the defendant some time in the early part of the summer. 1925, entered into possession of the land without the knowledge or consent of complainant, and has held the same ever since; that for the reasons stated, the tax deeds are void and convey no title to A. E. Sjoblom. Complainant offers to do equity. It is prayed that the tax deeds, be decreed null and void and ordered cancelled; that defendant be ordered to surrender the possession of the lands to com *381 plainant, and for general relief. The defendants demurred on grounds in effect: (1) no equity in the bill; (2) no' cause of action is stated for relief in equity; (3) Allegations show “no right to bring this action;” (4) Complainant has an adequate remedy at law. The court sustained the demurrer with leave to amend and complainant appealed. Section 894, Comp. Gen. Laws, 1927, as amended by Section 1, Chapter 14572, Acts of 1929, provides that “No assessment, and no sale or conveyance of real or personal property for non payment of taxes shall be held invalid except upon proof that the property was not subject to taxation, or that the taxes had been paid previous to sale, or that the property had been redeemed prior to the execution and delivery of deed based upon certificates issued for non-payment of taxes.” Even .if this statute is no't applicable to tax sale certificates issued in 1907, and to tax deed issued in 1918, the tax deeds were issued November 22, 1918, and the defendant took possession in 1925, and the bill in this case was not filed until April 3, 1931. During the time from 1925 to April 3, 1931, the defendant was in possession of the lands under his tax deeds and the bill prays a decree that the defendant “surrender the possession” of the lands. The four-year limitation to suits to recover possession after the holder under a tax deed entered into actual possession of the land, Section 1020, Comp. Gen. Laws, 1927, is applicable since the complainant prays for a decree for the surrender of the possession of the lands to her. In equity she may also be in laches in bringing her suit to' cancel the tax deeds and for the surrender of the "possession of the land, more than twelve years after the tax deeds were issued and about five years after the defendant took possession of the lands under the tax deeds. The bill alleges that the complainant was unlawfully deprived of her possession of the lands by the defendant who “entered into the possessio'n of the above-described *382 lands without the knowledge oi’ consent of complainant;” but the allegation as to unlawful dispossession is a mere conclusion, no supporting facts being alleged. Apparently the defendant did not, within four years from the date o'f the tax deeds, bring suit to recover possession of the land under the tax deeds; but it is alleged that in 1925 the defendant entered into the possession of the lands and has held the same ever since. Section 591, Gen. Stats, of 1906, Section 794, Rev. Gen. Stats, of 1920, which was amended in 1927-as shown by Section 1020, Comp. Gen. Laws, 1927, is as follows: “When the holder of a tax deed goes into actual possession, occupancy and use of the land embraced in such tax deed, and so continues for a period of four years, no suit for the recovery of the possession thereof shall be brought by a former owner or other adverse claimant unless such suit be commenced within, or prior to, the said period of four years after the holder under such tax has entered into the actual possession, occupancy and use of the land embraced in said tax deed; and the holder of such tax deed, where the said real estate is in adverse actual possession, occupancy and use of any person, shall not be entitled to recover possession of such real estate under such tax deed, unless suit for such recovery shall be brought within four years from the date of such tax deed; Provided, however, that infants, persons of unsound mind or under guardianship or imprisonment may commence suit or proceedings under this law within three years after the recovery or discontinuance of such disability.” The tax deeds are not shown to be void on their face, and this suit to cancel, the tax deeds and to have possession of the lands surrendered to the complainant who was the former owner, was not brought for more than four years after the time it is alleged that under the tax deeds the defendant entered into the possession of the land which he has held ever since. Affirmed. *383 Terrell and Davis, J.J., concur. Buford, C.J., concurs in the opinion and judgment. Ellis and Brown, J.J., dissent.