City of Olando v. Equitable Building & Loan Ass'n

45 Fla. 507

• Court: Supreme Court of Florida
• Decided: January 15, 1903
• Status: Published

Opinions

Carter, J.

This cause was duly considered by Division B, and there being a difference of opinion among its members as to the proper disposition'of the case, it .was deferred to the court en banc for decision.

On April 25, 1898, appellee filed its bill in the Otcange county Circuit Court ■ alleging that it was the owner in fee simple and in possession of a certain described part of lot 1, block 24, R. R. Reed’s addition to Orlando; that appellant, the city, held four tax certificates issued in pursuance of sales made for taxes assessed by it embracing-said land in whole or in part; that each.certificate was null and void for reasons hereinafter mentioned, and praying that they be cancelled as clouds upon the title. Appellant demurred to the bill, and upon the hearing the demurrer was sustained as to 'certain grounds and overrqled as to others, whereupon appellee dismissed so much of the bill as related to those grounds of demurrer which had been sustained, and appellant was required by the court’s order to answer at a fixed time. No answer having been filed, a decree pro oonfesso was entered, and thereafter, on October 22, 1898, a final decree was rendered whereby each of the four certificates was declared null and void, and appellant was directed to surrender same for cancellation. From that decree the present appeal was taken, and the errors assigned question the propriety of the ruling on the demurrer ;md of the final decree.

From the abstract it appears that the grounds alleged in the bill for cancellation of the several tax certificates, after it had been partly dismissed to conform to the ruling on demurrer, were as follows: As to certificate No. 107, sales of 1898, and certificate No. 203, sales of 1895, that the city tax assessor made the affidavit required by law before the city clerk who was not an officer authorized to administer oaths. As to certificate No. 175, sales of 1896, “Because the notice of said tax sale was published in two newspapers, to-wit:' Tlio Orlando Star and the Daily Reporter, whereas the law requires that it be published in a newspaper.” As to certificate No. 147, sales of 1877, because no report of said tax sale for 1897 was filed in the office of the Comptroller of the State as required by law.

The grounds of demurrer that were overruled were as follows: The affidavits before the city clerk were a sufficient compliance with law, and if not, «he defect was not so material as to make the assessments or sales' based thereon invalid. The publication of notice of tax sale in two newspapers was not thereby invalid. There, is no equity in complainant’s bill. Municipalities in this State are not required to file report of tax sales with the State Comptroller.

The bill seeks to cancel, as clouds upon title, tax certificates held by a city based upon its own sales for city taxes. If under the law the city was not authorized to take a certificate of sale for its own taxes, or if it had such power, but no deed could issue to the city upon it, or if it could take a deed, but such deed would not b'e prima facie evidence, perhaps the jurisdiction of a court of equity could not be invoked to cancel such a certificate, for if the city could not take a certificate upon the tax sales, such certificate would be void upon its face, ayid, therefore, would not be a cloud upon title, or if such a 'certificate though1 valid could never become the basis of a deed that would prima facie convey a valid title, or if in proving title under a deed issued thereon the evidence necessary to be produced by the claimant would inevitably show 'the defects complained of in the bill, the certificate would not be a cloud upon title so as to authorize its cancellation by a court of equity. Hughey v. Winborne, 44 Fla. 601, 33 South. Rep. 249. The court is of opinion, however, that a city could become the holder of certificátes such as the bill describes; that it could procure a deed upon such certificates, and that such deed, would be prima facie evidence of the regularity of the proceedings under thp statutes in force in this State at the time the -bill was filed and decree rendered. The power of the city of Orlando to become the holder of certificates .of sale for its city taxes seems to have been recognized in Steiff v. Hartwell, 35 Fla. 606, 17 South. Rep. 899. It is very generally held that without statutory-authority a city can not become the purchaser at a tax sale, and the question here* presented is as to whether there is such statutory authority. Section 52 Chapter 4115, acts of 1893, and section 51 Chapter 4322,- acts of 1895, provide that at tax sales by collectors of revenue “in case there are no bidders the whole tract shall be bid off by the collector for the State.” Section 57 of the former act and section 56 of the latter require the tax collector of any city 'or incorporated town to proceed substantially in the same manner in the collection of taxes and sale of lands and personal property for nonpayment of taxes as State tax collectors, which would authorize the city collector 1o bid off for the city any tract as to which there were no bidders. This authority, however, would not authorize a city to become a competitive bidder for real property at its fax sales, for it merely constitutes the city an involuntary purchaser of the property in case there are no bidders — but as such it is entitled to a certificate and á deed the same as any other purchaser at such sales. Other provisions in these statutes recognize this power of cities to thus become involuntary purchasers at their tax sales. Thus, section 4 of each act makes liable to taxation lands sold for taxes for the use of cities, and section 60 of the act of 1893 and section 59 of the act of 1S95 recognize the power in cities to hold certificates and to take deeds thereupon based upon city tax sales. While each of those acts provides that the State shall not take deeds upon certificates held by it, and that its certificates shall be evidence of the title of the State, no such provision is found with reference to certificates held by cities, and consequently the city must take a deed in the same manner as individuals, in order to perfect its title.

We are also of ©.pinion that a tax deed to the city duly executed by the clerk of the Circuit Court upon a certificate of sale for city taxes under the statutes applicable to the certificates mentioned in the bill would be prima facie evidence to the same extent as deeds executed upon certificates made in pursuance of sales for State and county taxes. In order to understand the reasons for so holding- it will be necessary to refer to some of the earlier statutes governing- the issuance and effect of tax deeds.

Chapter 197(1. act of 1874, by section 50 required city tax collectors to proceed substantially in the same manner in the collection of taxes and sale of lands for nonpayment of city iaxes as collectors of revenue, and this of course included the requirement of section 54 that certificates be issued upon sales tk>r city taxes. -Sections 57 and 58 provided for the redemption of certificates for city as well as State and county taxes, and section 59 provided for the purchase of “any such tax certificates held by the State.” with a proviso that the purchaser should purchase all the certificates held by the State, city or town upon the same property, &c. Section 00 provided “that on the presentation of such certificate or certificates of sale to 'tbe county clerk or tbe clerk of tbe city or town, as tbe case may be, after tbe expiration of time provided by law in this act for the redemption of land sold as aforesaid, unless the same shall have been redeemed be shall execute to the purchaser of his heirs or assigns a deed.of the land, * * * which deed shall be prima facie evidence,” &e. This section granted the power to execute the deed and prescribed its effect when so executed, but the form therein contained was applicable only to deeds upon sales for '.State and county taxes. This being true, section G1 was inserted which provided that “the clerk of any city or incorporated town shall make the deed for all lands sold in said city or town for the nonpayment of city or town taxes and not redeemed, substantially in the same form as provided in the foregoing section.” It is evident that this section was not designed to grant to the city clerk the power to execute the deed, but merely to regulate its exercise; for the power was expressly conferred by the preceding section, which also prescribed the effect as evidence of a deed executed under such power. The obvious effect of these provisions was to make the deed executed upon a city certificate prima fade evidence, and this court so held in Sams v. King, 18 Fla. 557, and Florida Savings Bank v. Brittain, 20 Fla. 507. ' It was held in the last named case that section 02 applied only to deeds made upon certificates for State and county tax sales, although the language was broad enough to cover deeds upon certificates for city tax sales. The act of 1874 was repealed by Chapter 3099, acts of 1879, hut. the provisions previously referred to were reenacted in substantially the same language in sections 53 to GO, except that the clerk of the, Circuit Court was substituted for the county clerk, so that there can be no doubt that deeds upon city tax sales executed under that act were prima facie evidence the same as under the act of 1874. By Chapter 3219, acts of 1881, the act of 1879 was repealed, but the same provisions were reenacted by that act in sections 52 to 60, so that city tax deeds were prima facie evidence under that act. By Chapter 3413, acts, of 1883, the act of 1881 was repealed, but substantially the same provisions were reenacted (except as hereinafter mentioned) in sections 53 to 60 inclusive, and we do not think the changes are of such nature as to make section 58, which prescribes the effect as evidence of deeds executed by the clerk of the Circuit Court, inapplicable to deeds upon city certificates executed by him. The changes made are in sections 58, 59 and 60, and are Simply such as are necessary to transfer the power to execute deeds upon city certificates from the city clerk to the clerk of the Circuit Court. Section 58 omits the words “or the clerk of the city or town, as the the case may be,” in order to transfer the power which under section 58 of the act of 1.881, those words conferred upon the city clerk, to. the clerk of the Circuit, Couri, and the words "such certificate or certificates of sale” at the beginning of section 58 of the act of 1883 have the same significance (that is they include city certificates) as did the same1 words used in the previous acts. So that the power of the Circuit Clerk to make tax deeds under the act of 1883 on city certificates is granted by section 58, which prescribes the prima facie effected to all deeds so executed by him, whether upon city or State and county certificates. Section 59 simply regulates the exercise of that power by requiring him to execute the deeds “substantially in the same form as provided in the foregoing section/’ and section 60 likewise further regulates it so as to require the deed to be made in the name of the city, whereas the form prescribed for him to substantially follow, in section 58, would require the deed to be made in the name of the State. The subsequent statutes makenochange in respect to the matters pointed out. See sections 51 to 59 inclusive, Chapter 3681, and also section 10 Chapter 3786, acts of 1887, the section last named providing that all sales for taxes made by appellant shall be made in the same manner and be of the same force as sales made under the general revenue laws of the State. See, also, sections 55 to 63 inclusive, Chapter 4115, acts of 1893, and sections 54 to 63 inclusive, Chapter 4322, acts of 1895. It is true that by Chapters 4.010 and 4011, acts of 1891, no sales could he made either for city or State and county taxes, but, as already shown, by the act of 1893 the former system was reenacted, and was in force when these certificates were issued.

Many well considered cases hold that if a tax sale be void by reason of the failure to-do some essential thing required to be done in pursuing the power to sell, or if the assessment upon which it is based be void at law, but is not unequal, inequitable or unjust, or void because of the omission or commission of some act that would render such assessment unequal, inequitable or unjust, and the property was. subject to taxation, and the assessment made by the proper officials and the tax not paid, then equity will under the maxim, that he who seeks equity must do equity, require the owner to pay the tax for which the land was sold, or so assessed, as a condition to granting relief by cancelling the cloud created by the sale. Wood v. Helmer, 10 Neb. 65, 4 N. W. Rep. 968; Fifield v. Marinette Co., 62 Wis. 532, 22 N. W. Rep. 705; Wisconsin Cent. R. Co. v. Lincoln County 67 Wis. 478, 30 N. W. Rep. 619; Casey v. Wright, 14 Mont. 315, 36 Pac. Rep. 191; Farrington v. New England Invest. Co., 1 N. Dak. 102, 45 N. W. Rep. 191. We deem it unnecessary to decide at this time whether this doctrine obtains in this State, for the reason that it is not insisted upon, or suggested in the briefs filed in this court. It is true that the bill, so far as the abstract discloses, contains no offer to do equity or to pay taxes equitably due, but there is no suggestion in the briefs that the bill could not be maintained in the absence of such offer. It would not be jurisdictional, and if raised might have been cured by amendment in the court below, or the court could at the hearing have made ample provision upon the subject, if it had then been called to its attention. Hee Hughey v. Winborne, supra. Even if we should hold that the general demurrer would raise the question, as to which there is some difference of opinion among the authorities, the fact remains that it was not insisted upon in the court below, or if so, that it has been abandoned in this court.

Some contention is made in the brief that the bill was bad because complainant did not allege a payment or tender of payment of taxes as required by section 8, Art. IX of the constitution. .A cursory reading of the provision referred to will demonstrate that it has no application to this case. Furthermore, the bill did not show that complainant owed taxes on other property validly and legally assessed, and the objection could, therefore, only be raised by answer. This is held in City of Tampa v. Mugge, 40 Fla. 326, text 336, 24 South. Rep. 489, to be the rule where a petition is filed under the statute to set aside an assessment, and the same rule applies to a bill in equity when filed for the same purpose. Pickett v. Russell, 42 Fla. 116, 28 South. Rep. 764. The constitutional provision has, however, no application to bills of the character here being considered.

The demurrer in this case seems to have been a general demurrer to the whole bill, and the only ground applicable to the entire bill was the thirteenth, alleging a general want of equity. The bill was not entirely wanting in equity if it stated any ground for equitable relief. Thompson v. Maxwell, 16 Ela., 776; Durham v. Stephenson, 41 Fla. 112, 25 South. Rep. 284. If, therefore, the bill alleged a case for equitable relief as against any one of the certificates, this ground was properly overruled. We hold that as to three of the certificates the bill was properly brought, which disposes of this ground of the demurrer.

All the other grounds of demurrer were addressed to particular parts of the bill, and asked the court to hold the entire bill.bad for objections applicable only to parts thereof. This is not permissible in equity pleading, as was held in Durham v. Stephenson, supra. The sdrne questions are, however, presented as objections to the final decree, and we will consider them under the assignment of error questioning the propriety of that decree. If the bill made no case as to any one of the certificates, the final decree is to that extent erroneous, notwithstanding the decree pro confesso against appellant, for even after a decree pro confesso relief must be granted only as to the case made by the bill, and if the bill makes no case, no decree ought to be entered in complainant's favor. Price v. Boden, 39 Fla. 218, 22 South. Rep. 657.

Certificates No. 107 and 203 were attacked upon the ground that no valid affidavits of the assessor were annexed to the assessment roll as required by law. Section 8, Chapter 3786, acts of 1887, requires the city assessor to annex to the assessment roll an affidavit in the form therein prescribed. The nature of the required affidavit is such as to secure uniformity in assessments and fairness in valuations of real estate, and it is, therefore, essential. The affidavits in this case were taken before the city clerk and he is nowhere given general authority to administer oaths. He is authorized to administer oaths in certain cases only, not embracing this, by section 719 Revised Statutes, but he is not included among those authorized to administer oaths generally by section 1299 Revised Statutes. We hold, therefore, that the two certificates based upon those assessments were void. Wood v. Helmer, Fifield v. Marinette Co., Farrington v. New England Invest. Co., supra.

We are also of opinion that certificate No. 175 was vori because the notice of said tax sale was published in two newspapers when the law required that it be published in one only. The statute, section 51, Chapter 4323, laws of 1895, required the list of lands to be sold for.State and county taxes to be published in a newspaper to be selected by the board of county commissioners. Whether the city tax collector, in order to proceed substantially in the same manner as the. State collector as required by the statute, must publish the city tax notice in the newspaper selected by the county commissioners, or whether he may publish in one selected by the city council, or by himself, we do not decide, but it is clear that the publication must be made in one official newspaper only.. This is important to the land owner for many reasons. Two official publications entail double costs of advertising against the land, double record of the advertisement, double forwarding of the papers to the clerk and Comptroller, two affidavits of publication, two records of same, and both affidavits * must be delivered to the collector after such record. The difficulty of wscert ¡lining which is the official publication in such cases, and which the land owner, the collector, and purchaser must regard as binding, to say nothing of complications arising' from varianceá between the' two, would seem to furnish sufficient reason for holding that two official publications cun not be sustained. Besides the cost of such double publication is a matter of material interest to the land owner. The sale if for a sum including illegal costs would be void. Genther v. Lewis, 24 Kan. 309. It is true the bill does not allege that the land was sold for double costs, but it does show an attempt to make two official publications which is a grave irregularity — see Wren v. Commissioners, 24 Kan. 301 — and in tax proceedings where the land owner shows a material irregularity that might have injured him, in a matter affecting his legal rights, there is no presumption of law that he was not in fact injured. The appellant in its brief in this court does not attempt to question the sufficiency of the allegations of the bill as disclosed by the abstract to show two official publications, but attempts to justify two. official publications under the law, and to assert that no actual injury is shown from the irregularity.

The remaining certificate, No. 147, was attacked upon the ground that no report of the sale was made to the Comptroller. Whether the requirement that the city tax collector shall proceed substantially in the same manner as the State collector, obliges him to forward a copy of his report of sale to the Comptroller as is the ease with the State collector under section 55 Chapter 4322, acts of 1895, is a question of some doubt. Undoubtedly une copy must he filed with and recorded by the circuit clerk as required by that section, and one copy retained by the city collector as therein directed, because these officials are concerned in the matter of redemption and the circuit clerk in the matter of making the deed. See sec-, tions 57 to ,60 of the act above referred to. Besides,' the copy filed with the clerk becomes the basis of the official record of the sale and is, therefore, indispensable. Int asinuch as the State Treasxirer and Comptroller have nothing to do with city taxes, or redemption from sales therefor, there would seem to be no good reason why a substantial compliance with the law regulating State tax sales should be held to require the filing of a copy of the report of city sales wtth the Comptroller. And this it seems to us would necessarily be the case if it was not for section 59 in the act of 1895 which provides for the sale of State certificates by the State Treasurer, with a proviso that the purchaser shall purchase all the certificates held by the State, city or town upon the same property, or file title of the Slate, city or town where a deed nas been made upon other certificates held by it. If the proviso be construed as a 'limitation upon the Treasurer’s power to sell State certificates so that he must require the purchaser to purchase city certificates as a condition precedent to the purchase of the State certificates, then it would be important to require the filing of the report of city tax sales with the Comptroller for the information of the Treasurer, to guide him in making his sales. Without deciding that this is the correct construction, but assuming for the purpose of this case that it is, we think that a failure to file the report of city sales with the Comptroller should, uot invalidate the sales, and base this opinion upon the following considerations: Failure to comply strictly Avith 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 dispa,tch in proceedings, and by a disregard of which the rights of parties interested can not be injuriously affected Avill not usually render the proceeding void, but Avhere 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 can not be disregarded, and failure to comply with them will render the proceeding invalid. Cooley on Taxation, p. 284, 471-2; Black on Tax Titles, Sec. 155. The provision requiring the report to be filed with the Comptroller was not intended for the benefit of the land owner. The copy filed with and recorded by the clerk of the court and the copy retained by the collector are intended for his benefit, but the copy filed with the Comptroller is for a different purpose. It is for the information of the State 'officials in disposing of the State’s certificates alone, and with that the land OAvner has no concern. We hold, accordingly, that certificate No. 147, sales of 1897, is valid as against the objection urged.

The final decree, in so far as it cancels the first three certificates named, is affirmed. As to the fourth certificate the decree is reversed, and as to that certificate the bill is dismissed.