Daniel v. Taylor

Rawey, C. J., (after stating the facts): The first and seventh assignments of error, and "those involving instructions given the jury, and instructions asked but refused, will be considered together. The first and seventh assignments are as follows: 1st. That the court erred in permitting the tax deed to J. N: Richardson to be read in evidence over plaintiff’s objection. 7th. That the court erred in refusing plaintiff's motion to strike this deed from the evidence. The instructions referred to need not be set out. The objections urged in the trial court under the first assignment were: 1st. That the deed was not executed under the seal of the county court, but under that of the Circuit Court; 2nd. • Because it appeared by the affidavit proving it for record that it was executed by the clerk of the Circuit Court; and, 3rd. Because it was never legally executed. The motion referred to in the seventh assignment was after the introduction by the plaintiff of his evidence in rebuttal, including the Jackson county tax-roll of 1877, and the ■advertisement of tax sales made February 4th, 1878, of which roll and advertisement there is an explanation in the statement preceding this opinion. The grounds of this motion were: That the deed was null and void and conveyed no title; the land was never legally assessed, nor legally advertised and sold; that — 644 — the notice of sale and proof of advertisement showed the sale to be a nullity; and that the deed had never-been properly recorded. It is unnecessary to review what has been heretofore-said by this court as to the clerk of the Circuit Court being the county clerk, within the meaning of the latter expression as used in the revenue laws passed under the Constitution of 1868; which Constitution, Section 17 of Art. VI, provided for a “clerk of the-Circuit Court who shall also be clerk of the county court.” Sams vs. King, 18 Fla., 558; Stockton vs. Powell, 29 Fla., 1, 10 South. Rep., 688; Brown vs. Castellaw, 33 Fla., 204, 14 South. Rep., 822. In our judgment the cases just named are conclusive of the-objection made to the introduction of the deed. In Sams vs. King the tax deed was executed, under the-general revenue law of 1874, the statute now under consideration, by the clerk of the Circuit Court, he describing himself as such and affixing the Circut Court seal, and the objection urged to the deed covered both the use of that seal and the officer’s acting and signing as such clerk, the contention urged here being, as shown by the files, that the law required the use of ■the seal of the county court, and that he should have acted and signed as clerk of the latter court; but the-deed was held valid, and our understanding of the decision is that it was intended to cover the entire objection and hold the deed valid against it and as the exclusive official act of the clerk of the Circuit Court. The fact that the clerk in executing the deed now before us has described himself as “county clerk,” 'and has in the concluding clause defined the seal used as that of the “county court,” when he has used the-, seal of the Circuit Court, are immaterial irregularities;, and the deed must be held a substantial compliance — 645 — with, the provisions of Section 60 of the general revenue act of 1874, Chapter 1976, notwithstanding what is said there as to the county clerk and the seal ■of the county court. The expression “county clerk,” ■as used in.the statute, or in any official act under it, must be held to mean the same as clerk of the Circuit Court, and the use of the seal of the Circuit Court can not be regarded otherwise than as a substantial compliance with the prescribed form of deed without disturbing a rule of property. As to the motion to strike the tax deed from the evidence, it is urged in behalf of the appellant, the mov .ant, that the assessment was void. The effect of the tax roll is to show that the land was assessed as “unknown.” The revenue statute referred to provides: ‘ ‘All lands shall be assessed in the county * ■* in which the same shall be, and every person shall be assessed in the * * county * * in which he resides when the assessment is made, for all lands then owned by him within such county * * ; but .lands owned by one person and occupied by another may be assessed in the name of the owner or occupant, and lands not occupied or cultivated may be .assessed as non-resident.”—Section 6. “Unoccupied lands, if the owner is unknown, may be assessed as ■such without inserting the name of any person.”—Section 7. The ownership of the land during the year 1877 was in Mrs. Louisa C. King and J. M. Barnes occupied it; and this being so the assessment should have been made in the name of either such owner or such occupant. The assessment was illegal and void. L’Engle vs. F. C. & W. R. R. Co., 21 Fla., 353; L’Engle vs. Wilson, Ib., 461; Brown vs. Castellaw, 33 Fla., 204, 14 South. Rep., 822. — 646 — The second ground of this motion is founded on the-record of the advertisement made by the collector of lands for sale for taxes. The fiftieth section of the statute, Chapter 1976, after providing for the sale of land for taxes and for the publication of a notice of sale, and the form of such notice, enacts that the publishers, proprietors or foreman of any newspaper publishing any such notice shall forward a copy of each number of his paper, containing such notice, to the-collector of revenue and clerk of the county, by mail,, and shall make an affidavit setting forth a copy of such notice, with the date of the first publication1 thereof and the number of insertions, sworn to and subscribed before some officer authorized to administer oaths in the county in which said newspaper is. published, and shall send such affidavit to the county clerk of the county where such land is situated, who shall record the same among the records of his office, and after such recording deliver it to the collector of revenue. There was no objection to the admission of the record referred to, nor do we perceive any defects-» that are fatal to its use for the purpose of the plaintiff,, which'purpose was to show that the land in controversy was never advertised for sale. This land does, not appear in such record of the advertisement, and we think it was legal evidence that the land was never advertised for sale. The statutory requirement (sec. 50 supra) was that the advertisement should be ‘ ‘published, in the manner provided by law for legal advertisements,, and shall be published once in each week for four successive weeks.” “.The manner provided by law for legal advertisements’ ’ includes publication in a newspaper-published in the county. McClellan’s Digest, p. 102,. Section 1; p. 522, Section 11. , The omission of notice-of the sale is not amere irregularity, but a fatal defect, — 647 — the validity of all subsequent proceedings depending-upon a substantial compliance with the law in this regard; and the provision of law as to it must be complied with at least substantially, if not strictly. Blacks on Tax Titles (1st ed.), Section 78; Ibid (2nd ed.), Sections 205, 210; Blackwell on Tax Titles (5th ed.),, Sections 896, 398, 413; Cooley on Taxation, pp. 482-487. The notice required by law is jurisdictional. This, says the last author cited, is one of the most important of all the safeguards which has been deemed, necessary to protect the interests of parties taxed, and nothing can be a substitute for it or excuse the failure-• to give it; and being a prerequisite to the officer’s authority, the fact that in-the particular case it can be - shown that the party concerned was folly aware of the-proceedings, will be of no avail in supporting them;., and mere informalities or unimportant variances in an attempt to comply -with the law may not be fatal, but. variance in substance can not be overlooked. In Scales, vs. Alvis, 12 Ala., 617, 46 Am. Dec., 269, it was held, even that consent of the land owner to a defective pub lication of notice would not bind him as he could not. in that manner confer authority upon the officer of the law, nor could he pass title to his freehold by a mere; waiver. Blackwell, Section 451. The prima facie evidence of regularity of proceedings as to the assessment and the advertisement or-notice of sale which the deed is made by Section 60 of' the tax act of 1874 (Sams vs. King, supra), is over come by the above tax-roll and record of the advertisement or notice; but it is contended that appellant, is precluded from setting up any such defects by the-provisions of the sixty-third section, which enacts:.That no suit or proceedings shall be commenced by a former owner or claimant, his heirs or assigns or his: — 648 — ■ or their legal representatives, to set aside any deed made in pursuance of any sale of land for taxes, or •Against the grantee in such deed, his heirs or assigns ■or legal representatives, to recover the possession of such lands, .unless such suit or proceeding be commenced within one year after the recording of such ■ deed in the county where the lands lie, except upon "the grounds that the said lands were not subject to 'taxation, or that the taxes were paid or tendered, together with the expenses chargeable thereon before sale; and the recording of such deed shall be deemed •such assertion of title or such entry into possession by' the grantee, his heirs or assigns, as to authorize such •■suit or proceedings against him or them as for an •-actual entry. There was a saving clause in favor of •persons of unsound mind, under guardianship, or imprisoned, of one year after the disability shall cease. It was said of this section in Florida Savings Bank vs. Brittain, 20 Fla., 507, 513, 515, that it did not contemplate that the recording of the deed should be hpld ■ equivalent to an actual entry, and that the section - could be made applicable only to a case where the former owner is proceeding to set aside the deed or to re- • cover the land from the tax purchaser, his heirs or assigns. The act of 1883, Chapter 3413, Section 61, enacted that no suit or proceeding should be commenced ' by the former owner or claimant, his heirs or assigns, •-•or his or their representatives, to set aside any deed made in pursuance of any sale for taxes, or against the / grantee in such deed, his heirs or assgins or legal representatives, to recover the possession of such lands, unless such suit or proceeding be commenced within ‘■'three years after the recording of such deed in the »county where the lands lie; and it was held in Graham — 649 — vs. Florida Land & Mortgage Co., 33 Fla., 356, 14 South. Rep., 796, that the statute did not of itself vest such possession of the lands in the grantee named in the tax deed as to authorize the former owner to sue for a recovery of the same at law and to defeat his remedy in equity to remove the tax deed as a cloud when it was such. In the case before us the tax sale took place February 4th, 1878, on a tax assessment of 1877, and the tax deed to Richardson was executed March 8th, 1879, and filed for record on the 11th and recorded on the 12th of March, 1884. Mrs. King, who at her death was Mrs. Gilbert, was the owner of the land from 1862 until her death, which was in the latter part of December, 1884, or in January, 1885, and she was living on it when she died; and though she had not been living there long then, the testimony is she had been controlling the rents for several years prior to her death. A proper inference to be drawn from the evidence is that Richardson was never in possession of the land though he may have paid some tax on it. McN ealy •claims to have bought under an execution sale made August 4th, 1884, under judgments rendered against Richardson July 3rd, 1883, the former of these dates being also the date of the sheriff’s deed to McNealy. McNealy had no possession during the life. of Mrs. King. The statement of Cofield 33. King to McNealy as to the latter’s title “by tax deed” being good, and his agreeing to' rent the place, made in the last illness of Mrs. King, had no effect as against her. McNealy says he did not tell Mrs: King that he had the tax deed. Under the circumstances detailed above, our opinion is that the tax sale conveyed no title to Richardson, nor the execution sale any to McNealy. Neither — 650 — had any effect; upon Mrs. King’s title, and at her death the title was in her, and it descended to her three heirs, who were the defendant Cofield B. King her son, and the daughter and the surviving husband, Gilbert. If we concede' for the purposes of this case-that Mrs. King was barred of any relief in equity against the illegal tax deed as a cloud upon her title, such title was nevertheless of no effect against her' title or possession, and it is no basis for any claim in favor of Richardson or McNealy. ■ Neither of these two parties had any title to the land when Mrs. King died, and unless there are other circumstances in the record to change the result, the legal title in so far as it descended to Cofield B. King, became subject to the-lien of the judgment of March 2nd, 1885, against him and in favor of the Chesapeake Guano Company. The testimony to be noticed as capable of having the effect suggested is as follows: Dickson, a witness for' plaintiff, says that after the death of Mrs. King, who-was then in possession, the defendant, Cofield B. King, continued to live upon the land and cultivate the same, and was in possession during the year 1885 and until the Pall of 1886, when he moved some miles away; and that King rented from McNealy in 1885. Mc-Nealy says that in January, 1885, after Mrs. King’s death, King rented the land from him and agreed to pay $16 rent for 1885; that witness was acquainted with the land, and it was worth $20 to $25 per year rental; he thought the latter k fair rental value. That he acknowledged his title to be a good one and rented the land from him; that King was unmarried at this, time, but said he expected to marry soon; that at this, time witness agreed to sell King the land for $40 payable in the Pall of 1885; gave him a bond for title, and in November, 1885, made the deed to his wife, — 651 — Mary F. King, and took up the bond. This deed bears date November, 30th, 1885, but was never recorded till November 6th, 1889, or a few days before the trial and nine months after the institution of this suit. King told witness when he took the bond that he expected to marry, and would want the deed in his wife’s name. His wife paid, the money herself, and at the same time paid the rental for 1885, King being not “right present, * * but near by, somewhere around the house.” Another witness said $25 was a fair rental, and that there was a dwelling on the land in 1885, and that the fences were in better repair than when he was testifying. J. R. Taylor testified that in the Fall of 1885 Gilbert came to him to borrow some money for Mary F. King, saying she wanted to borrow it, and that he, Taylor, loaned him $56 for her and took security for it on a mule. It was the mule referred to hereafter. Gilbert says he was requested by her to borrow it. It also appears that in 1885 there was a voluntary division of the estate of Mrs. Louisa 0. King (Gilbert), between Gilbert and the daughter, Mrs. Dickson, and the defendant, 0. B. King, in which division the husband and the daughter each took a forty of land, and King took a mule. Gilbert, the husband, states they knew at that time that McNealy claimed the land in question by purchase, and that King said he could buy it from McNealy. An instrument executed, on this division, by Gilbert and King and wife, and relinquishing to Mrs. Dickson, the daughter, the interest of the former parties as heirs of the mother, Mrs. Louisa C. King, to the S. E. J of the N. W. i of the same section of land, bears date December 26th, 1885. Gilbert says the division was in 1885, and, he thought, in the Fall; that Mrs. Dickson and King executed a paper to witness showing the — 652 — forty he took, and he and King executed one to Mrs. Dickson showing the forty she took. B. S. Liddon, who was one of the attorneys of the Chesapeake Guano Company, says they dunned King repeatedly and threatened suit against him, and after judgment was obtained against him, King offered to sell them the land, but would never do so, and they advertised it for sale under execution, and not long before sale day he married and presented his claim to an exemption of the land, and for this reason they did not sell. That before they advertised the land .for sale King told them that MdNealy was claiming a tax title on the land and had threatened to sue him unless he would pay rent; and witness told him the tax deed was void, and that they would buy the place on the debt. That King claimed the land at that time and took his exemption on it when they offered to sell it. It is entirely clear, if Mrs. Mary F. King, wife of C. B. King, is eliminated from this controversy, that the defendant C. B. King has no standing. The tax deed was void as to him, and he could not defeat a creditor by the simple recognition of a pretended title as superior to the valid interest inherited from his mother. What would be the effect of King’s attornment to MdNealy, if the latter still held the tax title and the tenancy continued, or if MdNealy, or some bona fide assignee of his title, were in possession of the land, is a question we need not decide. In disposing of such question we would have to consider the effect of King’s having possession at the time of the attornment, upon the creation of an estoppel upon him to deny McNealy’s title (Sedgwick & Wait on Trial of Title to Land, sec. 357), and also the nature of King’s holding and interest as a coparcener in all the lands of his mother. Had King taken title to himself — 653 — from McNealy, the latter’s title being, as it was, void in law, and not a basis of recovery against him, or his coparceners, for all of whom he held, such title, and the transaction resulting in it, could certainly have no effect upon King’s title. In the lifetime of the mother, Mrs. Louisa C. King, the tax deed was a nullity as to her title, and so it was as to the title of her heirs after her death. As to King and his creditors the title in King, after her death, was that derived from her; he derived none from McNealy, and when the judgment was rendered on March 2nd, 1885, against King, the title was in him and his coparceners and not in Mc-Nealy; and as between King and his coparceners the purchase of McNealy’s title would have enured to the benefit of the several coparceners as a purchase by him of an outstanding title. Had the deed from McNealy been to King instead of to his wife it is clear that it would be no obstacle to the sale of J une 4th, 1888, at which Daniel purchased, nor would it have changed the character of Daniel’s title. The conveyance to Mrs. King does not present such a difficulty. We see that when King made the contract of purchase he intended to marry, and stated that he would want the conveyance made to his wife; such, however, we do not understand to have been the written contract. The deed to Mrs. King must be held to have been made in pursuance of the original desire of King. The money used in paying the rental and purchase money agreed to be paid by him was raised on the security of King’s property, the mule he had obtained from his mother’s estate. There is no evidence that Mrs. King' ever parted with anything of her own for this money. Any personal contract she made to pay the $56 was not binding on her. The reliance of the lender was necessarily the lien on King’s mírle, and under all the cir — 654 — cumstances of the case the only natural conclusion the jury could have reached is that the conveyance was made to the wife in pursuance of the original intention of King and to defeat his creditors. There is nothing to justify the conclusion that she did not take the title to this end. Whether or not an assessment of the kind presented by this case, or a failure to advertise, will overcome or preclude the defense of the statute of limitations prescribed by Section 61 of the act of 1874, Chapter 1976, supra, in favor of a tax purchaser or his assignee who has duly recorded his deed and is in bona fide possession, we do not say. There is no such case before us. No tax purchaser or his assigns has ever been in possession. The real possession has been in Mrs. King and her heirs, or in King himself all the time, in so far as King’s creditors and th.e appellant are concerned. While there-was no error in permitting the tax deed to be read, nor in refusing the motion to strike it out, as to have done this would not have been proper practice, still the court did err, under the facts of the case, in ignoring, as it did, both in instructions given and in refusing to give instructions asked, the principles announced above. Judgment reversed.