Coral Gables Properties, Inc. v. Stopler

*232 Whitfield, P. J. On January 4, 1934, Charles Stopler brought a suit to foreclose the lien of tax sale certificates for unpaid taxes of the City of Coral Gables for the year 1928 upon eight city lots, the certificates having been issued in 1929, and later acquired by the complainant in due course of transfers. The complainant paid State, county and district taxes for 1930 and 1931, and redeemed city tax certificates for taxes of 1929 and 1930, but did not pay city taxes on the lots for the year 1931. Several parties not including the City of Coral Gables were made parties defendant in the suit. One of the defendants, Coral Gables Properties, Inc., a Florida corporation, answered, setting up tax salé certificates for unpaid taxes of the City of Coral Gables for the years 1926 and 1927 upon the same land covered by complainant’s certificates. The court decreed that complainant’s liens for city taxes of 1928 have priority over defendant’s liens upon the same property for city taxes for 1926 and 1927. The lots sold for'$200.00 each, being much less than the first liens for taxes on the lots. The sale was confirmed. The defendant, Coral Gables Properties, Inc., “for itself and for and in the name of its co-defendants,” appealed from the final decree and from the order confirming the master’s sale as well as from an order denying a motion to dismiss the bill of complaint. The ground of the motion to dismiss, that Chapter 14572, Acts of 1929, cannot be invoked in foreclosing liens for city taxes held by individuals, was not well taken. Southwest Enterprises, Inc., v. Frasse, ........ Fla ........., 152 Sou. 175. Another ground of the motion to dismiss is that “the bill of complaint fails to state a cause of action.” Under *233 this general ground it is contended that the bill of complaint is defective because it was filed January 4, 1932, and does not allege that the complainant has paid the city taxes for 1931. Section 14 of Chapter 14572, Acts of 1929, contains the following: “A bill of complaint, unless in a suit of the State, shall be sworn to, and shall briefly set forth the fact of the issuance of the tax certificate or deed and the fact that complainant has paid all omitted and subsequent taxes and interest thereon and has redeemed all subsequent tax sale certificates affecting the same land.” If this suit is brought under Chapter 14572, the above quotation from the Act requires the complainant to set forth “the fact that complainant has paid all omitted and subsequent taxes and interest thereon.” The complainant paid the city taxes for 1929 and 1930 by redeeming the tax certificates issued therefor, but did not pay the city taxes for the year 1931. The suit was begun January 4, 1932, after the year 1931 had passed and after the taxes for 1931 were due and payable but before the taxes were delinquent. But the statute requires all omitted and subsequent taxes and interest thereon to be paid by complainant, as well as that complainant shall have redeemed all subsequent tax sale certificates covering the land. As the complainant’s tax sale certificates are for unpaid city taxes for 1928, the city taxes for 1931 should have been paid as well as thej city taxes for 1929 and 1930, which were paid by the complainant. The complainant did not even make the City of Coral Gables a defendant in the suit so as to give the city an opportunity to protect its rights in the premises, as is contemplated by Chapter 14572, where the city has á right that might not have matured. *234 The lien for the city taxes of 1931 continues until satisfied by payment or otherwise by adjudication in appropriate proceedings in which the holder of the lien is a party. If this suit was not brought under Chapter 14572, but under other sections of the Compiled General Laws, permitting tax liens to be enforced in equity, the' chancellor might require the prepayment of all taxes that are due though not in default, as an equitable consideration in affording an equitable remedy. Or the court might require the city to be made a party defendant so as to protect the rights of the city in the premises, as a condition for the equitable remedy invoked. As the decree must be reversed on its main feature, the complainant may be allowed to amend as it may be advised. In Allison Realty Company v. Graves Investment Co., filed May 25, 1934, it is held that the liens of State, County and municipal taxes are first liens superior to all other liens upon the lands assessed, and that all such first liens should be paid ratably upon equal terms and without priorities among them, whether the liens are for taxes of the same or different years. As the decree here gave priority to city tax liens for 1928, priority over city tax liens for prior years, there is substantial error. Reversed for appropriate proceedings. Davis, C. J., and Terrell and Brown, J. J., concur.