Summary
In Heinberg v. Andress, Fla., 45 So.2d 488, we were confronted with the identical question and by unanimous opinion we gave it an affirmative answer, so the case at bar is reversed on authority of Heinberg v. Andress, last cited.
Summary of this case from Swigert v. ParkerOpinion
March 10, 1950. Rehearing Denied April 24, 1950.
Appeal from the Circuit Court for Escambia County, L.L. Fabisinski, J.
William R. Davenport, Pensacola, for appellant.
Jones Latham, Pensacola, for appellee.
The appellee prevailed in her suit for ejectment against the appellant, and when judgment was entered and motion for new trial was denied, this appeal followed.
Both appellant and appellee claim title to the property in question by virtue of tax deeds issued to them by the clerk of the Circuit court. The latter had purchased, on July 11, 1939, a tax certificate dated August 5, 1929 and a tax certificate dated August 7, 1933, paying at the time subsequent omitted taxes for the years 1928 to 1939. She then, on December 3, 1941, caused a notice to be published that as the holder of the certificate of 1929 she had applied for a tax deed and that unless the certificate was redeemed, the property would be sold the fifth day of the following month. Eventually, July 23, 1942, a tax deed issued, conveying to appellee " Lot 3, west of R.R., less 4 acres, Section 23, township 3 north, range 31 west" although the land was described in the certificate and notice as "lot 3, less 4 acres west of R.R." of the same section, township, and range. So it will be noted that the terms "west of R.R." and "less 4 acres" which we have italicized were transposed. Upon request, the clerk of the circuit court executed a corrective deed acknowledged August 9, 1948 and recorded two days later, bearing the date of the original conveyance and giving the description as it originally appeared in the notice and application.
Meanwhile, on May 26, 1948, the appellant purchased a tax certificate of the sale of 1943 for taxes of 1942, and on July 5 of that year the clerk of the circuit court conveyed to him by tax deed land described as "Lot 3, west of Morgan's Cut Off" of the same section, township, and range, appellant having paid when he purchased the certificate all taxes for the years 1943 to 1947.
We gather from the record, including a stipulation of the parties, that all of Lot 3 lies west of Morgan's Cutoff and that the lot is bisected by a railroad, four acres only lying west of the right of way, so that the property described in appellee's application, notice, and corrective deed is Lot 3 excepting the four acres lying west of the railroad, while the property described in the appellant's notice, application, and deed is all of that lot.
It was also stipulated that on the tax books for the years 1942 and 1943 the owner of the property was shown as "unknown," that for the next four years the owner's name was McDavid Veneer Company, and in 1948 the owner was appellant.
The appellant insists that the court erred in holding his tax deed void for failure to mail a notice of his application because, so he claims, "there was no showing as to any person being entitled to notice" and the evidence established positively that the appellee was not entitled to notice.
Section 194.18, Florida Statutes 1941, and F.S.A., in effect when appellant received his deed, provides that the clerk shall mail a copy of the notice of application for a tax deed to the owner of the property if his name and address "appear on the tax roll for the year in which taxes were last extended" or if the name and address do not appear there, then to the person last paying taxes as shown by the tax collector's receipt book. As has been seen from our reference to the stipulation, appellee's name did not appear on the tax roll for the years 1942 to 1948. The notice was sent to McDavid Veneer Company, which appeared to be the name of the owner for the years 1944 to 1947. Parenthetically, it was shown that, although this company's address was absent, the notice was mailed to it because the address was known to one of the clerk's assistants. This seems of small importance, however, because from what we can learn from the record, this company never owned the property anyway.
Inasmuch as both the owner's name and address were not present in the rolls, we turn now to the tax collector's receipt book to see who last paid taxes on the property. The transcript shows that the collector received no taxes whatever on the property from 1928 to 1940 and that taxes for the years 1928 to 1947, excepting the year 1941, were paid at the clerk's office. It is a reasonable deduction that the one who paid taxes in 1941 was the one to whom the notice should have been given, and in this year they were paid by J.M. Fleming to the collector on "Lot 3 W of RR Less 4A." Here again we confront the discrepancy in the description with which we shall presently deal when we discuss the strength of appellee's title. But despite it, should not one seeking the name of the owner to whom notice should be given be immediately apprised that J.M. Fleming had an interest in Lot 3 which should not be ignored, especially as a tax deed to the whole lot was in contemplation? We think so.
Appellant's position is that the receipt book entry was of little consequence inasmuch as he was interested in all of Lot 3 and the property described in that book was not the same tract. But this is merely a play upon descriptions. Even though the faulty description coincided with the one in appellee's first tax deed, it was sufficient for the purpose of showing who had last paid taxes on Lot 3 or some part of it, hence to bring into effect the statutory requirement. We do not adopt the reasoning of the appellant that because only four acres of Lot 3 actually lay west of the railroad, and Fleming paid taxes on Lot 3, west of the railroad, less four acres, by mere subtraction, Fleming paid on, to quote appellant's brief, "Four Minus Four" which is "Nothing."
We find this position somewhat inconsistent with that subsequently taken by the appellant. Although he had received his tax deed July 5, 1948 based upon tax certificate 503, his counsel, several weeks later, August 23, 1948, had the clerk of the circuit court mail to J.M. Fleming, who, as we have seen, paid the taxes for 1941, as well as to the appellee, a notice of application for tax deed, stating that the property would be sold July 5, 1948, a date then past. As a consequence of this notice, the appellee paid to the clerk a substantial sum of money in exchange for his receipt "redeeming Tax Certificate No. 503 [on which appellant's deed was based] for 1942 to 47 taxes on land described as Lot 3, West of Morgan's Cut-Off," which we have already observed is all of Lot 3.
With these complex facts in mind we turn now to the position of the appellant with reference to the effect of Section 194.18, in the light of Section 192.21, Florida Statutes 1941, and F.S.A. He stressed two portions of the latter — that is, the one referring to the correction of an omission by a clerk of the circuit court, and the other providing that no sale for nonpayment of taxes shall be held invalid in the absence of proof that the property was not subject to taxation or that the taxes had been paid prior to sale or the property redeemed before delivery of the tax deed. We shall treat of them in inverse order. These last provisions are identical with those appearing in the law enacted in 1929, Chapter 14572.
The appellee feels that this phase of the present litigation is directly controlled by our decision in the case of Jernigan v. Harrison, 136 Fla. 320, 186 So. 511. There the opinion quoted the statute with reference to the mailing of a notice of application for a tax deed, then Section 4 of Chapter 17457, Laws of Florida, Acts of 1935, F.S.A. § 194.18, and generally discussed the importance in the protection of the rights of the owner of the land of the statutory requirements with reference to advising him that he is about to be deprived of his land because of his delinquency. Although the conclusion was based principally on Section 2 of Chapter 17457, supra, F.S.A. § 194.16, governing the publication of the notice, it is significant that the court did quote, relevant to its comment on the purpose of intelligence to the owner, the law, Section 4, which at that time provided only that the failure of the owner to receive it should not affect the validity of the tax deed.
The law controlling this part of the case — that is, the validity of the appellant's tax deed as distinguished from the validity of the appellee's tax deed, which we shall eventually reach — is the law in effect when the deed was issued in 1948. Lucian v. Duvane Corp., 158 Fla. 634, 29 So.2d 627. Beside deciding this point, it was held in that case that the mailing of the notice was not jurisdictional because of the express terms of the then statute, a part of Section 40, Chapter 20722, Laws of Florida, Acts of 1941, F.S.A. § 194.51, that "failure of the clerk to mail the notice * * * or the failure of the owner * * * to receive such notice shall not affect the validity of the tax deed * * *." (Italics supplied.) In 1943 this portion of the law was amended to eliminate reference to the failure to mail and was changed to read: "The failure of the * * * owner * * * to receive such notice shall not affect the sufficiency or validity of this requirement" — that is, the requirement for "mailing notice to owners of property where county holds tax certificate." F.S.A. § 194.51. (Italics supplied.)
It is most significant to this writer that when the law was amended in 1943 much more particularity was required of the clerk to determine the person to whom the intelligence should be given. It had originally been provided that the clerk should mail to the owner a copy of the portion of the newspaper containing the information if his address was known or, if unknown, to the best address the clerk could obtain by diligent inquiry. To repeat, this, it will be remembered, was at a time when the failure to mail was declared not to invalidate the deed. But in 1943 when this provision was omitted, the legislature enacted that a copy of the notice should be sent to the owner if both his name and address appeared on the tax roll and if these were not present there, to the one last paying taxes on the property as shown by the tax collector's receipt book, requirements to which we have already referred. In this section is repeated the provision above quoted from Section 40 of the same act that the failure of the owner to receive the notice shall not affect the deed. So twice in the same act the legislature stressed the matter of receiving the notice and eliminated the former provision with reference to the mailing.
Evidently the appellant thought the requirement of mailing a copy of the notice to the property owner was important, as we now think it is, for he attempted to cure the oversight by having a copy of the application sent, not only to the person whom he now claims to have had no interest in the property, J.M. Fleming, but also to his adversary who is claiming the title. He must have had in mind the provision of the statute already quoted that any acts of omission or commission could be corrected at any time by the officer responsible for them and when thus accomplished their acts would be valid ab initio. If we accept this position, then the notice of application, even though belated, was valid as from the day it should have been made, and the result accomplished — that is, the payment of all taxes by the appellee — completely undermined the tax deed which the appellant received.
After a careful study of the applicable statutes and the record in this case we are convinced that, in all the circumstances, the appellant did not hold a title to the property which was impervious to the attack made upon it by the appellee.
The next phase of the case has to do with the sufficiency of appellee's title to support the verdict and judgment with which she was favored in the action in ejectment. This aspect of the controversy involves the description in appellee's deed, which appellant claims was fatally defective for uncertainty and the variance in the description in the certificate and the application for a tax deed and the description in the deed itself. At the risk of being repetitious, we again draw attention to the facts that the descriptions in the certificate, the application, and the corrective deed corresponded and contained no defects, that the error to which we have alluded crept into the original deed executed by the clerk.
It is true that the corrective deed was not on record when the tax deed was issued to the appellant July 5, 1948, but it is equally certain that the entire record relative to the sale of the property for taxes, the tax certificate, the application and sale of the land at appellee's behest were accessible at the clerk's office and that the discrepancy in the description, present only in the clerk's first deed, was apparent to anyone taking the trouble to look at the record. It is a fact, too, as we have said, that appellant recognized, albeit tardily, that appellee was interested in Lot 3, west of the cut-off, or east of the railway, by causing a notice of appellant's application to be served on her. She, in response, redeemed the certificate that formed the very foundation for the appellant's tax deed. This was accomplished after the corrective deed had been given.
From the welter of circumstances many legal questions suggest themselves: the necessity of notice to the one whose name and address appeared on the tax roll or, in their absence, to the one who, according to the tax collector's books, last paid the taxes; the significance of the legislature's omitting in late laws any reference to the failure of the clerk to mail the notice as distinguished from the failure of the owner to receive it; the power and duty of the clerk to correct errors and the provision for such corrections becoming retroactive; the appellant's position that no notice need have been given the appellee and his subsequent causing of the notice to be given; the payment by appellee of taxes and her redemption of the certificate (on which appellant's deed was based) in response to that notice; the doing of these things after appellant received his deed and after appellee got her corrected deed; the status of the appellant as an innocent purchaser.
All these, considered in the light of the statutes in force and the inherent justice of the cause, bring us to the conclusion that the trial judge ruled fairly when he held that appellee should prevail and that no violation of any of the relevant statutes resulted from his decision.
We feel that in all candor we should recognize the confusion which has arisen in the treatment by this court of the importance of the notice to be mailed by a clerk to a property owner at the time an application for tax deed is made. In the case of Tindel v. Griffin, 157 Fla. 156, 25 So.2d 200, 204, Division A, as then constituted, held, in considering the law applicable to a tax deed issued December 6, 1943, that the plaintiff's attack on it failed because the bill of complaint contained no statement that there were addresses of any persons appearing on the tax roll for the year in which the taxes were last extended, and no averment that the name and address of the person last paying taxes on the land was shown by the tax collector's receipt book; so the court concluded that "the allegations of the bill of complaint are insufficient to show a lack of notice as required by statute, or a lack of due process of law." Although there is in that opinion a reference also to the failure to show that the property was not subject to taxes or that the taxes had been paid or the land redeemed, we think there is a clear inference that the requirements with reference to the notice were not merely directory, but were indispensable to a procedure to deprive an owner of his property by issuing a tax deed conveying it to another.
In the case of Sudduth v. Hutchison, Fla., 42 So.2d 355, there appears a comment by the court which is inconsistent with what has been written in this case and with what we have quoted from the case of Tindel v. Griffin, but from an examination of the original record we find the inconsistency, so far as the merits of the controversy are concerned, to be more apparent than real. In that case (Sudduth v. Hutchison) the appellees brought suit to quiet title to property they held under a tax deed. In the answer filed by the appellant-landowner the sufficiency of the published notice was challenged, and this was eventually held to be valid. It was further asserted on behalf of the landowner, appellant, that the clerk well knew the address of the defendants and the name of the record title owner but, despite this knowledge, failed to mail a copy of the notice. The appellant did not, however, stress, or even mention, the failure of the clerk to mail a notice to the owner whose name and address appeared "on the tax roll for the year in which taxes were last extended" or, if such name and address did not appear, "to the person last paying taxes upon such lands as shown by the tax collector's receipt book." This, as we have already said, was the provision of law which was then and is now in effect.
When the case of Sudduth v. Hutchison, supra, was presented in the lower court, as well as here, it is clear that the parties presented the issues in the light of the act of 1941, Section 194.18, supra, and not in the light of that section as it was subsequently amended in 1943. This is obvious from the phraseology used in the answer and the language of the briefs with reference to "diligent search" by the clerk, and so on.
As a consequence, this court reached a conclusion consistent with the equities of the cause, but in the discussion pursued the same course chosen by the litigants, and referred to the same terminology of the 1941 act in stating that, although a copy of the notice should be given the owner if his address was known, and a certificate of non-service should be made if after diligent search and inquiry the address could not be ascertained, this notice was directory and not mandatory. The distinctions between the 1941 act and the 1943 amendment which now lead us to a contrary belief seem not to have been urged or considered.
In summary, we do not now recede from the conclusion reached in the case of Sudduth v. Hutchison, supra, but we are constrained to announce that we do recede from whatever was written there in conflict with what is written here with reference to the efficacy of the notice mailed by the clerk.
Affirmed.
ADAMS, C.J., and TERRELL, CHAPMAN, SEBRING, HOBSON and ROBERTS, JJ., concur.