McLeod v. Williams

Whitfield, J. McLeod brought ejectment to recover possession of N. W. pi of N. E. pi and N. ]j£. pi of N. W. pi, Sec. 1, T. 3 N., R. 29 E., containing 80 — 340 — acres. Trial was had upon a plea of not guilty. The plaintiff introduced a tax deed dated December 19, 1914, based upon a tax certificate issued to the State dated September 2, 1912, for unpaid taxes of 1911. A conveyance of the timber on the land dated September 28, 1910, executed by W. J. Williams, Sr., to the Yellow Pine Land Company, the rights under the,conveyance to cease six years from January 1, 1911, was properly, excluded by the court, it not being material to the issue. The, plaintiff rested and the defendant offered testimony to show the tax deed tosbe void on grounds that (1) the county commissioners in making' the tax levy for 1911 did not “ascertain and determine the amount of money to be raised by tax for county purposes,” etc., as required by Section 2, Chapter 6157, Acts of 1911; (2) the property was not assessed “in the name of the owner or legal representative of the owner, or as ‘unknown’,” or “to the same owner as for the previous year” as required by sections 20 and 26, Chapter 5596, Acts of 1907; (3) the tax certificate was not assigned by the clerk’s signature to the assignment endorsed thereon, as require^! by Section 568, General Statutes of 1906; (4) notice of the issuance .of the tax deed was not given as required by Section 575, General Statutes of 1906. At the conclusion of the’ testimony the court declared the tax deed to be void and directed a verdict for the defendants on which judgment was rendered and the plaintiff took writ of error. Tax deeds duly'issued pursuant to the statute are “declared to. be prima facie evidence of the regularity of the proceeding's from the valuation of the land described .* * * to the date of the deed.” But when a substantial defect in “the proceedings” that affect the validity of the tax deed, is shown, the tax deed is ineffectual as title un — 341 — less the holder thereof sufficiently overcomes the showing made of the defect in the proceedings. ^ A failure to comply strictly with those provisions of tax laws which are intended for the guide of officers in the conduct -of business devolved upon them, designed to secure order, system and dispatch in proceedings, and by a disregard of which the right of parties interested cannot be injuriously affected, will not usually render the- proceeding void; but where the requisites prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and a disregard of them might and generally would injuriously affect his rights, they cannot be disregarded, and a failure to comply with them will render the proceeding invalid. An applicant for a tax deed who takes it when the authority to execute it has not been exercised as required by mandatory provisions of law, does so at his •peril. Where the prima facie effect given a tax deed by the statute is overcome, it is the duty of .the party claiming under the tax deed to show its validity. Clark-Ray-Johnson Co. v. Williford, 62 Fla. 453, 56 South. Rep. 938; Starke v. Sawyer, 56 Fla. 596, 47 South. Rep. 513. Section 2, Chapter 6157, provides that “The Board of County Commissioners of every county, at a meeting for correcting and reviewing the county assessment, shall, immediately- thereafter* ascertain and determine the amount of money to be raised bj' tax for county purposes, including the current expenses, interest on bonded debt, bridges and county buildings, ánd to meet the expenses, they are hereby authorized to- levy a tax of not more than five mills upon the dollar on the real and personal property of the county; and every such deter342 ruination and levy so made shall be entered at large upon the records of the Board of County Commissioners.” The minutes of the board of county commissioners put in evidence show the following entries: “According to advertisement, Board met this date, notice having been given that they would be in session on Tuesday, August ist, 19n, to hear complaints and receive testimony as to the value of any property as fixed and assessed by the County Assessor of Taxes. “The Assessor presented his Tax Roll for the year 1911, and after examination the Tax books showed that the valuation of all taxable property of the county to be 4, 689, 058, the Board therefore made the following levy for the year 1911 to-wit: “For general revenue 3 mills or thirty cents on the One Hundred Dollars of taxable property. For fine and forfeiture fund one-half mill, or five cents on the One Hundred Dollars. For road fund 3 mills or thirty cents on the One Hundred Dollars. For bridge and building fund one and a half mills, or fifteen cents on the One Hundred Dollars. For County schools six and a half mills, or sixty-five cents on the One Hundred Dollars of taxable property. . “The Board of Public Instruction filed their estimate for the school year beginning July ist, 1911, and ending ‘June 30th, 1912, and asked that a tax of mills be levied, and on motion was allowed____________ “There being no further business, Board adjourned.” Manifestly, these entries do not show that the county commissioners did as expressly required -by the' statute “ascertain and determine the amount of money to be raised by tax for county purposes” etc. Nor do the entries show that such determination was entered at — 343 — large upon the records of the board of county commissioners. The land was assessed in 1910 to W. A. McLeod and in 1911 to the Yellow Pine Land Company. It does not appear that the latter company returned the land for assessment. Sections 20 and 26, Chapter 5596, Acts of 1907, contain the following-: “The County Assessor of Taxes shall ascertain by personal inspection, where not already sufficiently acquainted therewith, the value of the lands and assess them at their full cash value in the name of the owner or legal representative of the owner, or as ‘Unknown.’ and set down in the assessment roll following and opposite the description of the lands the name of the owner or his or her legal representative, and when the land has not been returned for assessment on or before the first day of April in each year, by the owner or legal representative of the owner, the County Assessor of Taxes shall enter the word, ‘Unknown,’ in the column of the assessment roll provided for the name of the owner, or his or her legal representative. “All assessments shall be legal which shall be assessed to the same owner as for the previous year; Provided, That the owner does not return it for taxation.” It appears that the land was conveyed to W. J. Williams, Sr., in 1910 by the Yellow Pine Land Company. Obviously the land was not assessed in 1911 to the owner W. J. Williams, Sr., or as unknown or “to the same owner as for the previous year,” who was W. A. McLeod, since the assessment for .1911 was to the Yellow Pine Land Company who did not own the land, but did own the timber. The statute provides for assessing tim — 344 — ber rights separate from the lands. The assessment was not made in accordance with the statute. Sections 568 and 573, ’General Statutes of 1906, contain the following: ‘'568. All tax certificates heretofore or hereafter issued, whether to the State or individuals, shall be transferable by endorsement at any time before they are redeemed, or a tax deed is executed therefor.” “573. Any person may purchase any certificate of land sold or. certified to the State for taxes from the clerk of the circuit court of the county wherein such land is situated * * * and the endorsement of such certificate by such clerk officially, with the date and amount received, shall be sufficient evidence of the transfer and assignment thereof.” The tax certificate on which the tax deed was based shows that the endorsement of the assignment to W. A. McLeod has no signature at all to it, the clerk’s official seal and official designation appearing-, but no signature. The statute necessarily contemplates the affixing of the name of the clerk to the assignment of the tax certificate. Section 575 of the General Statutes of 1906, mandatorily requires the clerk to mail a copy of the prescribed notice of application for tax deed to the owner of the láiids pr to the person last paying taxes on said property. Where the Clerk of the Circuit Court does not give the notice of an application for a tax deed in substantial compliance with the statute, the tax deed is void. Hempel v. Consolidated Land Co., 69 Fla. 277, 67 South. Rep. 915. It appears that a copy of the notice was mailed to M. E. Wilson, an officer or agent of the Yellow Pine Land Company, but-lie is not shown to have been agent — 345 — of the owner of the land or that he was the person last paving taxes on the land. Hightower v. Hogan, 69 Fla. 86. As the tax deed under which the plaintiff claimed title to the land was ineffectual to convey title because of the fatal defects in the proceedings constituting the assessment and the issue of the tax deed, there was no error in directing a verdict for the'defendants, and the judgment is affirmed. Browne, C. J., and Taylor, Shackleford and Ellis, JJ., concur.