Brown v. Castellaw

33 Fla. 204

Opinion

Mabby, J.,

(after stating the facts:)

The subsequent tax deed to Mary W. Castellaw based upon a tax sale in 1878 for non-payment of the taxes" in 1877, without being successfully impeached,, authorized a recovery on the part of the plaintiffs. Spratt vs. Prince, 18 Fla., 289. In the body of this-tax deed, following the description. of the land conveyed, is the following recital, viz: “Assessed to H. P. and J. W. Lucas.” A prior recorded deed to them for the land was also introduced. The object of introducing the tax deed to Greeley based upon a tax sale in 1873, for taxes assessed in 1871, was to show that- H. F. and J. W. Lucas did not own the land in 1877, and hence its assessment to them in that year, upon, which plaintiffs’ tax deed depended, was void. The assessment and sale upon which plaintiffs’ tax deed, rests were under the revenue act of 1874, Chapter 1976, laws of Florida. Section 6 of this act provides that “all the lands shall be assessed in the county, town,, city, ward, or school district in which' the same shall, be; and every person shall be assessed in the city,, county, town, ward and school district in which he resides when the assessment is made for all lands then owned by him within such county, city, town, ward'orn school district; 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.” The 60th. section provides that the tax deed to be issued shall be prima facie evidence of the regularity of the proceedings, from the valuation of the land by the assessor to the date of the deed inclusive, and of title to the purchaser. The tax deed offered to be read in evidence by defendant was made under the revenue act of 1872, Chapter 1887, and it contains the same provision (Section 17) as the act of 1874 in reference to making the tax deed prima facie evidence of the regularity of the-proceedings, from the valuation of the land by the assessor to the date of the deed inclusive, and of title-in the purchaser.

If it be conceded that the recital in plaintiffs’ tax deed showed that the land was assessed to H. F. and J. W. Lucas in 1877, and also that the tax deed offered by defendant was prima facie evidence that Greeley, and not the Lucases, owned the land that year, there was nothing to show when the deed was. first offered that the latter were not in possession Of the land when assessed to them) The statute under which the assessment was made authorized the same to be made, when owned by one person and occupied by another, in the name of the owner or occupant. The deed was made prima facie evidence of the regularity of the assessment, that is, that the land was assessed to the proper person. When defendant first offered his tax deed there was no evidence before the nourt furnished by the deed itself, or otherwise, to impeach thq prima facie regularity of the assessment in 1877, as shown by plaintiffs’ deed, and we think that the court did not err in ruling it out.

Defendant, after making proof that H. F. and J. W. Lucas did not, as a matter of fact, occupy the land in 1877. again offered the tax deed in evidence, and the court again refused to admit it. If H. F. and J. W. Lucas neither owned the land in 1877, nor were then in the occupancy of it, the assessment upon which plaintiffs’ deed was based was void, and the deed itself passed no title. L’Engle vs. Florida Central & Western R. R. Co., 21 Fla., 353; L’Engle vs. Wilson, Ibid, 461. It is contended by counsel for appellees that the recitals in the deed introduced by them furnish no evidence that the land was assessed to H. F. and J. W. Lucas in 1877. It is insisted that the form of the deed prescribed by the statute for use when plaintiffs’ deed was executed nowhere contained the name or names of the party or parties to whom the land was assessed for taxes, for the non-payment of which it was sold, and that the recital in the deed before us in reference to the assessment to H. F. and J. W. Lucas was unauthorized and binds nobody. If the recital in the deed in this respect be rejected as . surplusage, th e prima facie evidence afforded by the deed is that the land was properly assessed, and, in the absence of evidence aliunde that it was assessed to the Lucases, plaintiffs’ tax deed would not in any way be impeached by the prior tax deed offered by defendant. It is contended by defendant, however, that the recital is at least prima facie evidence that the land was assessed to the Lucases iu the year 1877. The general rule, independent of statutory regulation, is that a tax deed as against the land owner is not even p>rimafacie evidence of the facts recited in it, as it is made in pursuance of a specially delegated power,’ and all proceedings prerequisite to the exercise of such power must be shown before the deed can be regarded as a valid conveyance of the land. Cooley on Taxation, p. 517; Black on Tax Titles, secs. 246, 247. The statute under which plaintiffs’ tax deed was executed provides that the deed shall be prima facie evidence of the regularity of the proceedings from the valuation of the land by the assessor to the date of the deed inclusive, and of title to the purchaser, and also that the deed shall be substantially in the form prescribed by it. In the form of the deed prescribed by the statute is a recital, among other things, of a sale of lands by the collector of revenue for the non-payment of taxes levied and assessed thereon for a specified year, and which remained unpaid on the day of sale, together with the costs and charges due, and a description of the land sold, the name of the purchaser and the amount of the purchase price are also given. In this deed there is no recital of the name of the party to whom the land is assessed. After making a tax sale the collector of revenue was required to enter in a book, to be prepared by him, a list of the lands sold, the date of sale, the number of certificate issued, the name of tthe owner as returned, a description of the land sold, the name of the purchaser, and the amount for which the sale was male, leaving suitable margins, for entries in case of redemption. A copy of the entries in this book, the form of which is prescribed by the statute, is required to be filed with the clerk, and the original book is filed with the Comptroller. Admitting that any recital in a tax deed not contained in the form prescribed by the statute, although the clerk making it had before him record evidence of the name of the owner returned, is not made prima facie correct by the statute, yet where a purchaser of a tax title accepts from the clerk a deed containing material recitals relating to and connected with the tax sale and offers it as evidence of his right to recover the land therein described, it will operate as an admission on his part that the recitals are true. It is his own deed and he relies upon it as evidence in the cause, and he-thereby furnishes evidence against himself of the facts therein recited. Such recitals were evidently acceptable to him as he received the deed, and may have been put there at his instance. Although a grantee in a deed containing such recitals may not be conclusively bound by them, yet the acceptance of such a deed and the offering'it in evidence in his behalf, in the absence-of any showing to the contrary, will make the recitals therein evidence against him. The tax deed introduced by plaintiffs recites a sale of lands by the collector of revenue of Duval county for the non-payment of taxes levied and assessed thereon for the year 1877, and that the Comptroller became the purchaser of a certain described tract (embracing the land involved in this suit) for a mentioned sum. After the description of the land sold the deed recites the following, mz: “Assessed to H. F. and J. W. Lucas,. which said sum was the whole amount of taxes due and unpaid on said tract of land for the year aforesaid, together with the interest and costs due thereon and the charges of such sale.” It is evident that the assessment to the Lucases mentioned in the deed is of ■the land described therein and for the year 1877, and the rejection of the deed offered by defendant for the reason that it was not shown that the land was assessed to EL F. and J. W. Lucas in 1877, can not be sustained.

It is further insisted that as the evidence showed a •conveyance of the land to H. F. and J. W. Lucas in 1869, and that they claimed to own it until 1882, when they sold it to the Florida Savings Bank and Real Estate Exchange, an assessment to them in 1877 was proper and legal.. The tax deed to Greeley, recorded in June, 1885, was prima facie evidence of title in him, and, without evidence to impeach it, divested all the title out of the Lucases acquired by the conveyance to them in 1869. After the recording of Greeley’s tax •deed in 1875 the record evidence then was that he was ■owner, and as the Lucases were not in possession, the land could not on this showing have been legally assessed to them. The deed offered by defendant would have furnished prima facie evidence that the recorded title of the Lucases had been extinguished, and a claim ■of ownership of the land without avoiding in some way the tax deed, would not have made them owners. ■Conceding the prima facie validity of the tax deed to Greeley, he was owner in 1877, and not the Lucases.

Another objection to the introduction of the deed is that no evidence was introduced to show that Greeley still owned the land under the tax deed issued to him in 1875, and for aught that appeared, he may have quit-claimed it back to the Lucases before 1877. In order to show that Greeley, and not the Lucasesowned the land in 1877, the tax deed to Greeley issued in June, 1875, was offered in evidence. If the title was vested in Greeley in June, 1875, it remained in him until divested in some way recognized by law, and in the absence of any showing to the contrary, would still be in him in 1877. Hewitt vs. Butterfield, 52 Wis., 384. Counsel for appellees say “this deed can not be said to be admissible as tending to prove ownership in Greeley, because the court only ruled it it out when defendant below admitted that was all the evidence he had to offer, and said tax deed to Greeley alone, or considered with the testimony offered, was not admissible.” What more was necessary to show title in Greeley in 1877 than to introduce a deed vesting the title in him prior to that date? The court can not assume, in the absence of any showing, that Greeley reconveyed the land to the Lucases, or any one else before 1877, and if such was the case it was the place of plaintiffs to have inquired into it and made it appear. The tax deed being prima facie qvídence of title in Greeley in June, 1875, defendant had a right to rely upon it as prima facie evidence of title in him in 1877, and there is no force in the objection stated.

Another objection is that defendant and plaintiffs claim title through and under the same source of title, and that defendant can not be permitted to show title in a third party. This contention is based upon the evidence of Greeley that the ■ Lucases claimed to own the land in controversy in 1882, when they sold it to the Florida Savings Bank and Real Estate Exchange, and that the bank sold it to Cash, of whose estate defendant is administrator. It is true Greeley testified that the Lucases claimed to own the land down to-1882, when they sold it to the Florida Savings Bank and Real Estate Exchange, and that Allen Cash acquired title from the bank, but this does not show that the defendant was defending on the title derived from the Lucases through the bank. He did not offer any deeds of conveyance under this source of title, and was content to rely upon the tax deed to Greeley to defeat the plaintiffs’ deed. We do not concede that where both parties in an action of ejectment claim under the State through successive tax titles, either would be precluded from denying the validity of the other’s deed; but, without deciding this, we have presented by the record the case of a defendant in possession seeking to defeat a recovery against him based on a tax title, by showing that the assessment upon which the tax deed rests was illegal, and if he can accomplish this, plaintiffs’ deed was void, and they were not entitled to recover. The tax deed offered by defendant embraced the land in controversy, was in compliance with the statute, and was mad e prima facie evidence of title in Greeley at the time of the assessment in 1877. The land was assessed to the Lucases, and it was shown that they were not at the time of the assessment in possession, and we think that the court erred in excluding the deed offered by the defendant.

It is further objected by counsel for appellees that the tax deed offered by defendant below should have been executed by Edwin Higgins, as clerk of the Circuit Court of Duval county, under the seal of that court, and not as county clerk, with the seal of the county court attached. It is insisted by appellant’s. counsel that this objection was not raised in the trial court, and can not be made here. It does not appear-that the objections made in the Circuit Court, and the rulings of the court thereon, rejecting the deed, in clude the oue just mentioned; but waiving the point as to the right of plaintiffs to raise the objection here, we Think it can not be sustained. The act under which defendants’ deed was executed provides that it shall be executed by the county clerk, with the seal of the county court affixed, and in this respect it was in compliance with the statute. The county clerk and circuit clerk were one and the same officer under the Constitution of 1868, and he is the officer referred to in the act of 1872 as the one to make the deed. Sams vs. King, 18 Fla., 557. The county court has a seal, and under the former Constitution of 1868 the circuit clerk was also clerk of the county court. Stockton vs. Powell, 19 Fla. 1, 10 South. Rep., 688. A deed executed by this officer as circuit clerk was held to be good in the case of Sams vs. King, and any substantial compliance with the statutory form will be sufficient. But the authorities are uniform that where the legislature has prescribed the form of a deed, a compliance with it must be held good; and this being the case, the objeotion raised can not be sustained. Cooley on Taxation, 515; Black on Tax Titles, Section 211; Bell vs. Gordon, 55 Miss., 45.

The court erred in refusing to permit defendant to introduce the tax deed to J. C. Greeley, and for this ruling the judgment must be reversed for a new trial, -and it is so ordered.