McEwing v. McCulloch

Per Curiam. Plaintiff in error was, in 1935, the owner of certain land in St. Lucie County, Florida. In that year one S. L. Williams, owner of a tax certificate thereon, brought suit to foreclose. L. B. McEwing, a non-resident, was served by publication. A special master was appointed to. make the sale, and did, subsequently make it. The sale was confirmed by the circuit court, Richard McCulloch, a third party, being the purchaser. Immediately on receipt of a deed from the special master, McCulloch took possession of the land and began to improve it. In January, 1938, McEwing brought suit in chancery to set aside the master’s sale because of jurisdictional defects apparent on the face of the proceedings, making McCulloch a party defendant to the suit. By decree of that court the sale was set aside and the deed declared null and void. In May, 1938, McEwing brought action in ejectment against McCulloch to recover possession of the land. By *847 virtue of the decree of the circuit court cancelling the deed, McEwing was successful in the ejectment suit. McCulloch,alleging that he had made certain permanent improvements, filed petition for betterments under the statute, Sec. 5047 (3239) C. G. L. The improvements consisted of draining, and diking certain low sections of the land, planting an orange grove, building a log cabin and mule shed, and digging a well. The jury found these improvements to be worth $11,305, and that the value of the land before the improvements was $784, with no injury being done to the land. Final judgment was entered, by the court reciting the findings of the jury and providing that unless McEwing -pay to or secure the payment of $11,305 to McCulloch within 60 days, McCulloch, on the payment of $784 to McEwing, would be given the title to the property. . . , .McEwing filed motion in arrest of judgment, motion for judgment non obstante veredicto, and a motion for a new-trial, all of which were denied. At the trial McCulloch introduced evidence as to the cost of the improvements at the time they were made, as distinguished from evidence as to the value thereof. To each question pertaining to such costs McEwing objected, the trial judge overruling all such objections. In betterment proceedings, the amount that may be recovered under Section 5049 (3241) C. G. L. is “the value of the permanent improvements at the time of the assessment.” This does not mean the cost of the improvements new, but the value of the permanent improvements to the land. (Glinski v. Zawadski, 8 Fla. 405; 39 C. J. 349.) The reasonable cost of replacing the improvements in their then condition may be admitted in evidence but not the original cost alone. (39 C. J. 336.) The circuit court erred in overruling the *848 objections of plaintiff in error to the admission of the original costs of the improvements into evidence. This alone is sufficient to remand the case to the circuit court for further proceedings; but inasmuch as there are presented for our determination other interesting questions which will probably appear again if not decided, we express our opinion on them now. One of these questions is whether or not the purchaser of real property at a tax foreclosure sale, whose deed was cancelled in a chancery suit, on the ground that the tax foreclosure suit was void on account of jurisdictional defects apparent upon the records of the court ordering the sale, and who has been evicted in an ejectment suit, may maintain betterment proceedings pursuant to Section 5047 (3239) C. G. L. to recover for improvements placed upon the property. The answer to this question involves a construction of that part of Section 5047 (3239) C. G. L. which is as follows: “That when the defendant made said improvements * * * he believed the title which he held * * * to the land thus improved to be a good and valid title.” This Court has not yet construed this statute with relation to the meaning of the word “believed.” However, in Boley v. Wynn, 68 Fla. 341, 67 So. 117, while there is no clear language to that effect, it appears that the belief must be bona fide and based on reasonable grounds. It appears from the record of the suit to set aside and cancel the master’s deed that the only jurisdictional defects consist of having mailed the various notices and orders to the wrong address, when by proper diligence the correct address could have been found; of not having alleged in the bill of complaint in the tax foreclosure suit that defendants, in the belief of plaintiff were either over or under twenty- *849 one years of age; no certified or other copy of the order of publication was ever posted on the door of the courthouse and no certified or other copy thereof was ever mailed tO' defendants; and defendants’ name was misspelled in all of the orders. In McDonald v. Rothgeb, 112 Va. 749, 72 S. E. 696, the Virginia Court has said: “It seems to us that to hold that a purchaser can close his eyes to his record title and recover for improvements, on the theory that ‘there was reason to believe the title good’ (Code v. 1904, Sec. 2963), would be to set a premium on negligence and nullify our registry statutes.” We are thoroughly in accord with this statement, but under the facts shown in this case we cannot find wherein McCulloch closed his eyes to the record title. The court in its final decree setting aside and cancelling the master’s deed, makes this recital: “The court finds that the said bill of complaint attacks a decree heretofore entered by this court as void for failure to properly follow the statute in obtaining constructive service, all of which matters are of record in this court.” While it is probably true that such matters were of record in the court, such defects are not shown on the face of any of the documents, orders or papers at which defendant in error, in a reasonably diligent search might look; for example, the final decree of the court confirming the sale, the deed itself, or the orders of publication. And where a court of general jurisdiction has acted within the scope of its general powers, a presumption exists that the court had jurisdiction of the subject-matter and the parties thereto unless the contrary clearly appears of record. Seaboard All-Florida Ry. v. Leavitt, 105 Fla. 600, 141 So. 886; Catlett v. Chestnut, 107 Fla. 498, 146 So. 241, 91 A. R. R. 212. *850 To entitle an occupant of land to remuneration for .his. improvements under the betterment statute, the test of belief should be whether or not he made the improvements while having a genuine, honest opinion that he was the true owner, and in ignorance that any other person claimed- á better right to the land. While it is true that the doctrine- of caveat emptor applies to judicial sales in this State, applying this test to what we have said, supra, we can find no reason why defendant in error should be considered as lacking in the requisite belief that his title was good. Plaintiff in error contends that where the petition does not allege the value of the land at the time of the assessment irrespective of the improvements put upon the land by the defendants in error, such petition does not state a cause of action. We cannot agree with this contention. No other errors appearing, the final judgment of the circuit court is reversed and a new trial granted'. It is so ordered. Whitfield, P. J., and Brown and Ci-iapman, J. J., concur. Terrell, C. J., concurs in opinion and judgment. Justices Buford and Thomas not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.