Lovett v. Shore

The judgment in this case refusing to stay execution in an ejectment suit wherein a tax deed was adjudged void, until the judgment plaintiff paid the amounts *Page 594 due the holder of such deed, as required by law, must be affirmed on the authority of San Sebastian Development Corporation v. R. O. Couch, decided at the present term, opinion filed November 24, 1931. Section 1026 C. G. L., 795 R. G. S., was in that case held to create a lien against the land covered by a tax deed only when it had been declared void in a suit either at law or in equity. Such lien was further held to be enforceable by an independent suit brought after the judgment or decree voiding the tax deed. By such independent suit, not in the ejectment suit involving the validity of the tax deed, the holder of the tax deed which is invalidated, should assert his claim and establish his proofs as to expense for obtaining the deed and recoverable value of improvements, these items being required to be "ascertained and found upon the trial" of such independent suit, not the ejectment suit which merely involves the validity of the tax deed. By allowing a lien for expenses and improvements, which is authorized to be foreclosed in equity, the statute contemplates that in ascertaining and finding the amount of this lien upon the trial of the equity suit, the court shall proceed according to equitable principles. This in turn means that the Court shall ascertain and decree to be paid the amount of expenses which the tax-deed holder has incurred in obtaining the void tax deed and such other amounts in addition thereto as will represent the fair cash value of all permanent improvements which the tax-deed holder has made upon the land during the life of the void tax deed. While under the statute, the holder of the void tax deed acquires a lien against the land covered by it for the value of all permanent improvements he may have made on the *Page 595 land while his tax deed remained unchallenged, yet such lien is in the nature of an equitable lien created by law to do justice between the parties and requires the land owner to pay forpermanent improvements only, which have added to the value of the property by being made on it while the void tax deed was undisturbed. This fair cash value is the fair cash value of the improvements to the land, not the fair cash value of such improvements per se, and the amount of same is in every case to be ascertained and found by the Court. Judgment affirmed. WHITFIELD, P. J., and TERRELL, J., concur. BUFORD, C. J., and ELLIS and BROWN, J. J., concur in the opinion and judgment.