Hull v. State ex rel. Rollins

29 Fla. 79

• Court: Supreme Court of Florida
• Decided: January 15, 1892
• Status: Published

Opinion

Raney, C. J.:

The fifty-fourth section of the general revenue act,, approved June 13th, 1887, Chapter 3681, Laws of Florida, authorized any person claiming land sold for taxes, or any creditor of any such person, to redeem the land, on the terms and in the manner therein stated, “within one year next succeeding the sale and the fifty-seventh section of the same statute enacted that on the presentation of the certificate of sale to the clerk of the circuit court or his deputy, “after the expiration of time provided by law in this act for the redemption of land sold as aforesaid, unless the same have been redeemed, he shall execute to the purchaser or his heirs or assigns a deed of the land therein described, unless it shall be shown that the taxes for that year have been paid before the sale.”

In the case before lis J. C. Greeley bought at a tax sale made by D. P. Smith, as tax collector of Duval county, on the fifth day of August, 1890, the land mentioned in the proceedings, the same having been sold for the collection of unpaid State and county taxes assessed for the year 1889. Smith, as such collector, issued to Greeley the usual certificate of sale bearing-date August 5th, 1890, and afterwards Greeley assigned the-certificate to Rollins, who, on the tenth day of November, 1891, presented the certificate to the plaintiff in error, clerk of the circuit court of Duval county, and demanded that he should execute and deliver to him a tax deed for the land in accordance with law, he at the same time tendering to the clerk his lawful fee fox such deed. The clerk refused to issue the deed, and thereupon Rollins applied to the judge of the fourth circuit for a writ of mandamus to compel him to issue it.

The provisions of the seventh and eighth sections of a statute approved June 10th, 1891, and entitled “An act to provide for certifying lands to the Comptroller, upon which taxes have not been paid for the redemption thereof, and for the forfeiture and sale of lands not redeemed,” Chapter 4011 of the Statutes, are the sole defense made by the clerk to the writ of mandamus issued by the judge.

The effect of preceding sections of this statute is : That after the first day of January, 1892, there should be no sales of lands for either State or county taxes ; ■and that the Tax Collectors of the several counties should open their books for the collection of taxes on the first Monday in November, 1891, and close them on the first Monday in April, 1892, and do likewise for each succeeding year ; and when they shall have closed their books “as now or .herein provided,” it shall not be lawful for them to receive further moneys remaining due for taxes on land. All lands upon which taxes have not been paid are then to be certified to the ■Comptroller, and clerks of the circuit court, and the Comptroller is required to make publication within one year of all lands so certified to him, except such .as may have been redeemed before such publication or are not subject to taxation. Redemption in the offices of the Comptroller and clerks of the circuit court are then provided for, and the State’s title to all lands not-redeemed at the expiration of two years from such certification becomes absolute, and the lands are to be-placed on sale by the State, subject, however, to the right of red.empti.on at- any time after the expiration of the two years from the certification, if the land has-not been sold by the State.

The seventh and eighth sections are as follows :

Sec. 7. No deeds, as now provided by law, shall issue upon any tax certificate now outstanding, for two years from the passage of this act; and any person or persons whose lands may have heretofore been sold for taxes, and to which tax deeds shall not have been issued at the time of the passage of this act shall, at any time within two years from the passage of this act, have the right to redeem said lands by taking the-steps now provided by law for the redemption of lands-from tax sales.

Sec. 8. Tax deeds to all lands upon which tax certificates may be now outstanding, and which shall not-have been redeemed, as provided in section 7, shall, at the expiration of two y.eai’s from the passage of this-act, issue as provided by law at the time of the passage-of this act.

The ninth section provides for the grading and pricing of all lands to which the State may acquire title Tinder the act; and the tenth section, for the sale of the same and the deed of >conveyance of those sold. The eleventh section repeals all laws and parts of laws in so far as they may be in conflict with the act; and •the twelfth section is that the aot “ shall be construed in connection with the general revenue law ’ such a statute, chapter 4010, having been passed at the same session of the Legislature and approved on the same day.

The question presented for our decision is the validity of the act of 1891, chapter 4011, in so far as it proposes to extend the time for redemption of the purchase made by Greeley at the tax sale of August 5th, 1890. It is contended by the relator that the statute is, both as to himself and to Greeley, unconstitutional and void for the reason that it violates the contract of the sale.

The rights of Greeley and his assignee are contractural; and not, as in Essex Public Road Board vs. Skinkle, 140 U. S., 334, a matter of mere public regu-' lation or policy, nor a mere matter of law. Greeley’s rights arose in a contract of bargain and sale. The land was offered for sale by the State, through its official agent, the tax collector of Duval county, under a statute, the validity of which is not impeached, and a compliance with whose essential provisions as to assessment and sale is not questioned, even if it be that the appellant could raise both or either of such questions in this pioceeding. The land was offered for sale under the terms and conditions prescribed by the act of 1887, chapter 3681, and one of these was that the purchaser should have a deed of conveyance of the land unless the same should be redeemed within one year next succeeding the sale, by making the payments prescribed. Greeley, on this offer being made at public outcry, bid for the land, and his bid was accepted, and he having- paid the amount required by law, the formal certificate evidencing the sale to him, and stating that he would be entitled to a deed, if the land should not be redeemed within a year, was issued to him. The entry into the agreement was the act of the parties. The State offered the land for sale, Greeley voluntarily made a lawful bid, and the bid was accepted and then complied with. It was a contract between the State and Greeley, and its terms were embodied in the law then in force. State ex rel. vs. Foley, 30 Minn., 330. The terms of the contract, in so far as the rights of the purchaser, and the duties. or obligations of the State, are to be found in the law authorizing the sale, or under which it was made. “ But,” says Judge Taney, speaking for the Supreme Court of the United States, in Bronson vs. Kinzie, 1 How., 311, 315, “the mortgage given to secure the debt was made in Illinois for real property situated in that State, and the rights which the mortgagee acquired in the premises depended upon the laws of that State. In other words, the existing laws of Illinois created and defined the legal and equitable obligations of the mortgage contract;” and in Cargill vs. Power, 1 Mich., 369, the decision was that the law in existence at the time a mortgage was executed and delivered was a part of the contract. The obligation of a contract consists, observes the Supreme Court of the United States, in its binding force upon the party who makes it. This depends on the Jaws in existence when it is made ; these are necessarily referred to in all contracts, and forming a part of them as a measure of the obligation to perform them by the one party, and the right acquired by the other. There can be no other standard by which to ascertain the extent of either than that which the terms of the contract indicate according to their settled legal meaning; when it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. McCracken vs. Hayward, 2 How., 608. In the case of the sale of land for taxes, which can be authorized only by the State, and to which the right of redemption is a customary, if not inseparable, feature, defining, if not limiting, the rights of the purchaser and continuing those of the defaulting owner, it is to the law existing at thg time of the sale that one reasonably must, and to it only that one naturally would, look to ascertain the period of redemption and the rights of the purchaser as to title and possession. The right of redemption from a tax sale is .governed by the law in force at the date of the sale. Merrill vs. Dearing, 32 Minn., 479. That the obligation of a contract to which the State is a party is protected from violation by the State, is settled law. Cooley’s Con. Lim., m. p. 274, 275, and note 2; Fletcher vs. Peck, 6 Cranch, 87; Davis vs. Gray, 16 Wall., 203.

That the extension of the time for redemption prescribed by the act of 1887 — one year next after the sale — to two years from the passage of the act of 1891, or, in other words, from a day in August, 1891, to on© in June, 1893, is a material impairment of essential rights guaranteed to Greeley by the contract of sale, and a positive diminution of the duty imposed by the contract upon the State, seems to our minds undeniable in the light of natural justice and common reason. By the contract right to a deed it was intended and implied that upon obtaining the deed, he should have the immediate right to the ownership and exclusive' possession and use of the land, with all the beneficial incidents of such ownership. Thjs right to have a. deed after the fifth day of August, 1891, and the-rights incident thereto, were obligations of the contract, and to postpone against the will of the purchaser, ■ or of his assignee, the enjoyment of such - rights for even a day, or the shortest period, to say nothing of a period of nearly two years, and this toe for the purpose of offering to the owner, or a creditor, during the time the privilege of redeeming, if he shall see fit to exercise it, is a vital and patent impairment of such obligation. This view is fully sustained by satisfactory authority. Judge Cooley, in his Constitutional Limitations, m. p. 291, expresses himself as follows: So a law is void which extends the time for the redemption of lands sold on execution or for delinquent taxes after the sales have been made; for in such a case the contract with the purchaser, and for which he has paid his money, is that he shall have title at the time then provided by law; and to extend the time ■for redemption is to alter the substance of the contract- as much as would be the extension of the time for the payment of a promissory note.. And the same author, in his work on taxation, says, that if the time to redeem has already expired before the passage of the new law, it is manifest such law can have no effect upon the sale; that, the title having become absolute, the Legislature can no more create rights in the land in favor of the former owner than it can in favor of any other person; but if the time for redemption has not expired, and redemption is still open to the owner, the want of power is not so entirely beyond dispute. Observing that in one case, Gault’s Appeal, 33 Penn. St., 94, it has been held that the time for redemption might be extended from one to two years, its reasoning being based on the liberal construction which should be put upon redemption laws, he still holds that the decisions to the contrary are based on reasons which are conclusive. “They,” he says, “plant themselves upon the principle that the obligation of the contract is inviolable. Now the purchase at a tax sale is clearly a contract. It is made under the law as it then exists, and upon the terms prescribed by the law. No subsequent statute can import new terms into the contract, or add to those before expressed. If it could be changed in one particular, it could be in all; if subject to legislative control at all, it is wholly at the legislative mercy.” Cooley on Taxation (2nd ed.), pp. 544, 545. In Robinson vs. Howe, 13 Wis., 341, the decision, was that where land has been sold for taxes under a law which provided that the owner might redeem it within a specified time after the sale, it is not in the power of the Legislature by a subsequent act, although passed before the expiration of that time, to extend the privilege of redemption for a longer period; that to extend it would impair the obligation of the contract; and that an act proposing to extend the time of redemption does not affect the rights of an assignee of a tax certificate issued before the passage of the act, although the assignment -was made and the tax deed was executed after the passage of the extending act and in the form which that act prescribed. In State ex rel. vs. McDonald, 26 Minn., 145, land -was bought in by the State at a tax sale, and the Comptroller, pursuant to the terms of the law under which the sale was made, sold and assigned the certificate of sale. After this assignment was made, the Legislature passed an act requiring every person holding a tax certificate to present the same to the county auditor at least ninety days before the expiration of the time to redeem, and the auditor to notify the person in whose name the land was assessed, of the time when the period of redemption would expire. TIitchings, the assignee of the certificate, did not comply with this act, and the relator, the administrator of the owner of ’ the land, claimed, as a consequence of this omission, the right to redeem. It was held that legislation could not by any act subsequent to the assignment, impair to any extent, the right acquired by the assignee to the fee simple of the land subject to the redemption provisions of the law under which the sale was made, and that the subsequent act could not, without violating the Constitution, be applied to a case where the right under the sale had vested in any person other than the State prior to its passage. The doctrine announced in the case of Merrill vs. Dearing, 32 Minn., 479, is that the period of redemption can neither be shortened nor extended by legislation subsequent to the sale. In Forqueran vs. Donnally, 7 W. Va., 114, the decision was that a purchaser of a part of a tract of land at a sheriff’s delinquent tax sale made in 1860, acquired by the purchase, payment of the purchase money and delivery to the purchaser of the sheriff’s receipt therefor, the right, if the land was not redeemed, in the manner prescribed by a designated section of the Virginia Code, within two years from the sale, to obtain a deed in the mode and manner prescribed by other sections, with the further privilege to the owner of redeeming after the expiration of one year from such two years if no deed had been made to the purchaser; that the right so acquired grew directly out of the contract of sale made in pursuance of the law under which it was made; that the right was an equitable right or interest entitled, on the failure to redeem, to ripen into a full legal title, and was secured by the provision of the Constitution securing contracts against violations by legislation. In Dikeman vs. Dikeman, 11 Paige, 484, it was held that where lands have been sold for taxes or assessments during the existence of a law which entitled the purchaser to an absolute deed or to a lease for a limited term, in case the premises were not redeemed within a specified time, it is not competent for the Legislature to extend the time for redemption, and thus to deprive the purchaser of the right to the possession and enjoyment of the premises without providing an adequate compensation to the purchaser.for his loss of the use o£ the premises during-such extension, “when,” says Chancellor Walworth in this case, “Storms became the purchaser of the premises in question; therefore, df these assessments were valid and the sale regular, his contract with the corporation, under the sanction of the law of the State, entitled him to an absolute lease of the premises at the end of the two years, and to the possession and use of the same, for the full term mentioned in his certificate of sale, in case the owners of the land, or some person for them, should not redeem the same, within two years, as required by the laws then in force. The question then, which arises under the act of the 25th of May, 1841; is whether it was competent for the Legislature to extend the timé for redemption, for six months at least, beyond the two years; and thus to deprive the purchaser of the possession and use of the premises for a part of the term which he had purchased therein, without any compensation whatever. It is true the fifth section of the act requires an additional per centage to be paid, in case the owners shall elect to redeem within six months after the service of notice upon the occupant. But such owners are under no obligations to redeem. And there is nothing in the act requiring them to pay the purchaser the rent of the land, or any interest upon the purchase money, during the time he is kept out of possession, where they neglect or refuse to redeem the premises within the six months. It is perfectly evident, therefore,' that the effect of such a law upon the rights of a prior purchaser, who had only purchased a term of one year in the land, ■would be to deprive him ■of the half of the value of his purchase,' in case the land should not be redeemed at the end of six months.' * * * But- in deciding upon the constitutionality of .a law which is general, and which in its operation may totally destroy the vested rights of other persons. I .am not at liberty to declare the law to be constitutional, merely because the injury to one of the parties in the particular case under consideration is comparatively small. For if the law is constitutional in refer •ence to this case, it is also constitutional in reference to the purchase of a term of two or three years only; where the purchaser would probably lose the entire benefit of his purchase, and the whole amount paid for the term, by the expiration of such term before the termination of the chancery suit.”

We do not understand Chancellor Walworth to decide that it would be competent for the Legislature to extend the time for redemption against a purchase made before the passage of the extending law, even if such law provided just compensation, but that he was merely pronouncing judgment upon the case before-him, including that of the absence from the statute of the specified provisions for interest and rental. We fail to perceive the principle upon which the vested right acquired in the property though the contract of purchase could be taken away from one private person and vested in another for his individual use or private purposes, even upon terms of the fullest compensation.

In addition to these tax decisions there are others of convincing analogy. In Bronson vs. Kinzie, supra, a mortgage contained a power to a creditor to sell on breach of the condition, and thereby pay the debt. This power when given was valid under the laws of the-State, and it was held that laws subsequently passed, giving the mortgagor twelve months to redeem the property from the purchaser at such sale, and prohibiting the sale of the property for less than two thirds of its appraised value, so altered the remedy of the creditor as to impair the obligation of the contract, and hence were void as to such mortgage and a sale and a purchase thereunder. See also McCracken vs. Hayward, supra. Greenfield vs. Dorris, 1 Sneed, 548, adjudged unconstitutional and void as to sales under prior deeds of trust, a statute which provided that “in all sales of real estate^thereafter to be made under execution or deed of trust, which by existing laws is subject to redemption, if the debtor is permitted by the purchaser or his assignee to remain in possession, he shall not be liable for rent from the date of the .sale to the time of redemption ; and if the purchaser or assignee shall take possession under his purchase, upon the redemption by the debtor, he shall be entitled to a credit for the fair rent of the premises during the time they were in possession of the purchaser.” Carroll vs. Rossiter, 10 Minn., 174, is a case where, in 1858, and where only one year was allowed to a mortgagor to redeem from a mortgage sale, the plaintiff’s grantor mortgaged to the defendant, and in 1861, when a mortgagor was by law allowed three years to redeem from such a sale, the mortgage was foreclosed by advertisement. The sheriff who made the sale gave the mortgagee, who was the purchaser, a certificate stating that the purchaser -would be entitled to a conveyance in three years from the date of sale. The court held that right of redemption was governed by the law in force when the mortgage was executed, and that the certificate, nor its acceptance, did not affect the rights of the parties. See also Goenen vs. Schroeder, 8 Minn., 387. In Hillebert vs. Porter, 28 Minn., 496, it was held that an act of 1878, so far as it applied to mortgages executed prior to its passage and required to be paid, for redemption from sales under the powers in such mortgages, a greater rate of interest than that required to be paid on such redemption by the laws in force at the time of the execution of such mortgages, impairs their obligation and is void. It is proper to note liere a remark in the opinion of the court in this case as to certain earlier decisions in that State which might be relied on as conflicting with our views : “Stone vs. Bassett, 4 Minn., 215 (298), was upon a sale under a decree in an action to foreclose, and the court .held the statute regulating redemptions from sales under decrees in force at the time of the sale controlled the right of redemption. * * The distinction in respect to rights of redemption between sales under decrees and sales under powers are more fully and clearly made by the opinions in Heyward vs. Judd, 4 Minn., 375 (483). * * The decision was followed — not because it was approved, but upon the rule of stare decisis — twice; in Berthold vs. Holman, 12 Minn., 335, and Berthold vs. Fox, 13 Minn., 501. It is impossible that any property rights now depend on that decision, and for that reason we do not hesitate to express our disapproval of it.”

In Grault’s Appeal, supra, which Judge Cooley refers to in his work on taxation, as one sustaining the power of the Legislature to extend, by subsequent legislation, the period of redemption, the passage of the extending act intervened the sale and the execution and acknowledgment of the deed. The sale was made by the sheriff under a levari facias issuing out of a court in which the judgment had been entered for a municipal paving claim, and it was held that until the deed was made and delivered by the sheriff the sale— which was regarded to all intents as a judicial sale— was liable to be set aside by the court issuing the process, and to which it was returnable, and in which the deed was to be recorded; and that so long as the sale was in fieri, it could not be called a perfected and complete sale. The court recognizing the rule that the obligation of no contract shall be impaired, whether it be for much or little, yet holds, even conceding there was a contract within the meaning of the Constitution, that the several acts under consideration constituted a system of remedies for enforcing the tax • ation power, and that the Legislature, whose power to regulate taxation was absolute and exclusive, and extended to seizing and selling to the highest bidder the citizen’s property without notice to him, could, in the exercise of this power, and as a part and parcel of such system, pass the redeeming act as one of the necessary means to the constitutional end of enforcing the payment of taxes; that the several statutes were the legislative mode of attaining that object, and one of them was as constitutional as the other.

The reasoning of this decision is not satisfactory to our minds. If it be that the judicial feature of the statutory system should distinguish from those in which there is no such feature, then it is only necessary to say that this feature is not a characteristic of our system.

Our conclusion is that the contract rights acquired by Greeley under his purchase would be violated by the extension of the redemption period proposed by the subsequent statute, and that it is not within the power of the Legislature to thus impair them, either as against Greeley or against his assignee, whether such assignment was made before or after the extending statute. This, is not a case in which the State was the purchaser at the tax sale and held the certificate-at the time of the enactment of the extending statute, and subsequently transferred it. The rule, or the effect of the statute of 1891, in such a case, or where any govermental agency, as such, holds the certificate at the passage of the statute, is not before us for adjudication. Board of Commissioners vs. Lucas, 93 U. S., 108; Lucas vs. Board of Commissioners, 44 Ind., 524; Essex Public Board vs. Skinner, 140 U. S., 334.

The judgment is affirmed.