Florida Land Holding Corp. v. Lee

*108 Per Curiam. Section 1026 C. G. L., 795 R. G. S., provides that when an owner recovers land upon which a tax deed has issued he must refund taxes paid and interest, and pay for any expenses and improvements. The statute in question was enacted in its present form in 1927 and has received judicial consideration since that time in the following cases: San Sebastian Dev. Co. v. Couch, 103 Fla. 692, 138 Sou. Rep. 61; Lovett v. Shore, 111 Fla. 592, 139 Sou. Rep. 194; Hecht v. Cardinal, 103 Fla. 930, 140 Sou. Rep. 648; Kane v. Eustis, 106 Fla. 817, 143 Sou. 655; Lovett v. Shore, 111 Fla. 592, 149 Sou. Rep. 603. The Chancellor in this case decreed a lien in favor of S. Burnett, Trustee, for $9,384.95 and $750.00 attorney’s fee upon certain lands which had been sold for taxes and upon which tax deeds had been applied for or issued as a result of the default in the payment of taxes thereon, from which tax certificates and the attempt of the holder to enforce them by tax foreclosure, or by securing a tax deed thereon, the Florida Land Holding Corporation, a mortgagee, as complainant in the court below, sought affirmative relief, and prayed that the tax certificates and tax deeds in controversy be decreed to be delivered up and destroyed and the holder restrained from attempting to procure a tax deed or deeds thereon. The court granted the complainant the relief prayed as to the cancellation of the tax certificates, but at the same time held and decreed that under Section 1026 C. G. L., supra, the tax certificate holder was entitled to have refunded to him the amount of taxes paid with interest and legal expenses as a condition to the relief granted, for which latter ■ amounts the court adjudicated that there was a lien on the lands involved which complainant, as an interested party, should be required to discharge upon having the tax certificates attacked by him *109 cancelled as prayed, as against the holder of the tax deeds and tax certificates. This appeal is by the complainant and the particular point of objection is the court’s requirement that the complainant reimburse the tax certificate holder before becoming entitled to affirmative relief against the tax certificates which such holder is to be required to surrender up for cancellation. In his final decree the Chancellor made a special finding to the effect that "the facts show that the taxes on these lands have never been paid by the complainant (Florida Land Holding Corporation), or by any of its predecessors in title to J. M. Burnett, Tax Collector of Hillsborough County, Florida, and that the tax deeds, which are now held by R. S. Burnett, Trustee, are held by him by reason of the fact that the tax sale certificates which were originally issued against the lands were settled for by the Tax Collector, and were never turned over to the original bidder at the sale, Miriam Mays Lee, for the reason that the check which was given to the Tax Collector (by the bidder at the tax sale) was-not good,” and held that the equities in the case were with the defendant, B. S. Burnett, Trustee, an innocent assignee of the legally issued tax certificates whose investment in the certificates was in law and in equity entitled to be made good before the complainant, a mortgagee, should have the right to demand that the certificates and tax deeds be cancelled. A tax sale certificate is not void merely because it is made to one whose duty it was to pay" the taxes for which it was issued, but in equity will be regarded as redemption where it is part of a transaction by which one whose duty it was to pay the taxes attempts thereby to defeat a lien on the property by letting it sell for taxes and then buying it in *110 at the tax sale in an effort to defeat the rights of lienors. See Kane v. Eustis, supra. In this case the controversy is between an innocent assignee of a tax certificate and a mortgagee holding a mortgage on the same land. While it is true that the land was bid in at the tax sale by the mortgagor, not one cent of the mortgagor’s money was ever paid in to the Tax Collector t.o complete the transaction as a tax certificate purchase by the mortgagor under circumstances that might amount to a payment of the tax, which under the law it was the mortgagor’s duty to pay. Had the mortgagor’s money actually been paid in to the Tax Collector pursuant to the bid which the mortgagor interposed but which his “bad” check did not satisfy, the situation would have been different. The case is therefore • one in which R. S. Burnett, as Trustee, has, by virtue of an investment of his own money, not the payment through him of money of the mortgagor or of anyone acting in his behalf, come into possession, as assignee, of certain tax certificates on certain lands which neither the land owner, nor the complainant below as the land owner’s mortgagee, has ever paid the taxes on as required by law. Nor does complainant make any other pretension in this, a court of equity. It is solely by reason of the peculiar circumstances of this case growing out of the giving of a “bad” check by the Lees, as a mortgagor bidder at a tax sale, that it is contended that R. S. Burnett, Trustee, the innocent assignee of the tax certificates, should lose his money, merely because the certificates were acquired by him from the Tax Collector who was thereby forced to pay the unsatisfied bid himself and take the tax certificates from the delinquent bidder as security for his money. Stated in a different fashion, the argument is that the mortgagee complainant should profit at the Tax Collector’s, or at his as *111 signee’s expense, to the extent of $9,384.95 unpaid taxes advanced by the Tax Collector to the State to cover an unsatisfied bid for tax sale certificates on lands which were admittedly liable to such taxes and upon which neither complainant mortgagee, nor its mortgagor, has made even the slightest claim that it was its or their moneys which have been used to pay the taxes in question. A majority of the Court are of the opinion that the decree appealed from is just, lawful and equitable in the stated conditions it has imposed upon the appellant as a prerequisite to its being awarded the equitable relief which it affirmatively sought by its bill in the court below, and that such decree should be affirmed on the authority of the equitable maxim, “He who seeks equity must do equity,” to be entitled to equitable relief. Affirmed. Whitfield, C. J., and Ellis, Terrell, Brown and Davis, J. J., concur.