Paul v. Fries

18 Fla. 573

• Court: Supreme Court of Florida
• Decided: January 15, 1882
• Status: Published

Opinion

The Chief-Justice

delivered the opinion of the court.

The appellants assign as error, that the court admitted in evidence tax deeds executed to the plaintiff subsequent to issue joined and subsequent to the demise laid in the declaration. '

Plaintiff had introduced to .sustain his action a paper purporting to be a tax deed to himself, upon a sale in 1875 for the unpaid taxes of 1874. This deed was dated anterior to the commencement of the suit. If this deed conveyed any title, to the plaintiff, which title remained in him at the time of his purchase of the certificates- upon which the subsequent deeds were executed, such purchase and deeds, (no other claims intervening,) were merely evidence that he -had paid the taxes therein mentioned, because it was his duty to pay the subsequent taxes, and he could thereby acquire no title, as he already possessed it.

If there is any importance to be given to the subsequent deeds as evidence of title, it is because the first deed, or what purported to be such, was ineffectual to give a title. No question was raised as to -the execution of the first deed, but it was received without objection ámd treated as'evideuce by the parties and the court. We should not here interpose any question, except -that we .cannot consent to sanction even by. our silence such an error as the record shows in the case of this deed. It has no witnesses to its execution. Section 62 of the act of 1874, Chap. 1976, says: “All tax deeds shall be executed in the name of the State, shall be signed by the County Clerk, shall be witnessed by Wo witnesses, and the seal of the County Court attached thereto.” It will be noticed that the attestation of two witnesses is one of the requisites in the execution of a tax deed, as necessary as the signature or the seal. It is, therefore, not an executed deed. The same is also true of the paper purporting to be a tax deed, which was offered in evidence by the plaintiff, upon a' sale of the lot in 1877 for the unpaid taxes of 1876. These papers are not effectual' as conveyances of the property. .

The only recognized deed offered by the plaintiff to sustain his action was the tax deed dated May 5; 1881, witnessed and acknowledged, issued upon a sale for the taxes of 1875 made May 4,1876, by the Collector of Revenue for I)aval county.

This suit having been commenced September 14, 1880, the plaintiff had no title by deed on that day. It is contended by the plaintiff (appellee) that - the period of redemption from the sale of May, 4, 1876, having expired May 4,1877, he became at that time vested with an equitable interest in the land sold, and that the deed of May 5, 1881, vested in him the legal title pursuant to the sale, and such legal title had relation to the expiration of the time of redemption and effective as a legal title from that time.

In the ease of Spratt vs. Price, 18 Fla., 289, the defendant Price obtained a tax deed after the joining of issue, and it was held that a tax deed in the hands of the defendant may have relation to the day upon which he was entitled to it, and if such day precedes the date upon which issue was joined, the deed was admissible under the general issue. The legal title in that case had passed out of the plaintiff by a tax sale and deed and had ve.sted in the defendant on or before the trial.

Say the Supreme Court of Pennsylvania- in Heffner vs. Betts, 32 Pa. St. R., 376, 378: “If the plaintiff had title when the suit was brought, and has not when the suit is tried, he cannot recover the land against the legal owner.” In that ease the title of the plaintiff was divested by virtue of a judgment lien and sale on execution at which the defendant’s grantor was the purchase!'. In the case of Spratt vs. Price, the latter being seized of the legal title before issue joined, the plaintiff failed to recover.

' Counsel for appellee here insist that the equitable interest’ his right to have a legal title, having been perfect befóle suit was brought, the deed executed ou the 5th May, 1881, the day of the trial, gave him a legal title which had relation to the day when he might have had a deed. They cite the case of Lynch vs. Bernal, 9 Wall., 315, to sustain this position. The case was cited in Spratt vs. Price, and sustains the doctrine there asserted. In Lynch vs. Bernal it is insisted that the rule was enforced in behalf of a plaintiff who occupied the same position as this appellee, that of a plaintiff seeking to recover land upon a title confirmed since the demise declared, upon. This is a mistake of counsel. The confirmation of the title in that case was long before the demise laid, and the doctrine of relation did not enure to the plaintiff in that case in aid of a- title acquired or confirmed after suit brought. The defendants in that case claimed a title older and superior to the confirmation of plaintiff’s title, and the court held that the confirmation related back to the inception of plaintiff’s right which antedated the defendants’ title.

The case of Jackson vs. McCall, 3 Cowen, 75, also referred to by appellee’s counsel, involved the question “. whether a sheriff’s deed executed after issue joined in the cause, the sale having been-made before the commencement of the suit, can be given in evidence by the defendant under the general issueand the court held that it could. The court say: “ This, therefore, is a case to which the doctrine of relation is peculiarly applicable, there being’ no strangers, or third persons, whose interest can be affected by it.” And the court quoted the general rule upon the doctrine,of relation from Viner’s Abr. Tit. Relation, 290 : Where-there are divers acts concurrent to make a con-' veyance, the original act shall be preferred; and to this the other act shall have relation.”

The case also cited by appellee in 12 Johns.,-140, decides that where a patent for land dated December 4, and passed the Secretary’s office December 28, by the doctrine of relation the title related back to the date, that being the day when the grant was ordered by the Commissioner of the Land Office, so as to give the plaintiff a right to recover for timber cut between the date and the delivery of the patent. But the suit was not commenced before the delivery of the patent, until which time he did not have a legal title.,

The case of Jackson vs. Bard, 4 Johns., 230, affirms the general doctrine of relation merely, but it is not a case involving the right of a plaintiff to sue in ejectment before obtaining' a legal title. Neither do the cases in 1 Johns. Cases, 85, or 3 Cai., 263, decide that a plaintiff can sue in ejectment before his legal title is vested. The case of Ridgway vs. Glover, 60 Ala., 181, involved merely the question of the power of the court to order the sheriff to correct a mistake in-' the description of one of several parcels of land, and the doctrine of relation was applied, upon the ground the legal title passed by the sheriff’s deed and the correction of the mistake in the deed had effect as of the date of the deed.

The only authority cited by the court was 48 Mo., 219, where a defendant had been permitted to have the sheriff’s deed corrected. The law in Alabama, as given in Ridgway vs. Glover, however, does not cover the case where no deed had been executed so as to vest-a title before suit.

The question is, whether ejectment can be brought, except upon a legal title vested at the date of the demise laid or the commencement of the suit.

In Maryland, as in Florida, the distinction between common law and equity, as known to the English law, has been preserved. Ch. J. Taney, in Lessee of Smith vs. McCann, 24 How., 398, 403, says the action of ejectment is the onh mode of trying the title to lands in that State. “And irthat action the lessor of the plaintiff must show a lega" title in himself to the land he claims, and the right of possession under it, at the time of the demise laid in the declaration, and at the time of the trial. He cannot support the action upon an equitable title, however clear and indisputable it maybe.” In Wait’s Actions and Defences, Vol. 3, p. 10, et seq., we find the subject treated and many authorities cited. The action of ejectment (says the compiler) L “ founded upon the principle that the defendant in possession is a wrong-doer in withholding the premises from the plaintiff; and unless he is so at the time the latter brings his action it cannot be sustained. A present right of possession is, therefore, essential,” and he must have it at the commencement of the suit.

In Taylor on Ejectment, 74-77, the same rule is stated, and a large number of cases referred to citing decisions in many States. Without reference to the cases cited in Tyler, we refer to the following : 9 B. Munroe, 143; 12 Ga., 166; 11 Ill., 547; 1 Blackf., (Ind.) 421; 3 A. K. Mar., 131; 4 J. J. Mar., 388; 25 Miss., 177; 11 Mo., 481; 13 Ill, 251; 32 Cal., 332; 5 Har. & Johns., 155; 4 Vt., 105; 10 Wend., 414; 2 Dana, 68; 11 Gill. & J., 351; 20 Barb., 559, and see numerous other authorities cited in VI. U. S. Dig., 1st Series, 137, §61.

In Currie vs. Tibbs, 5 B. Munroe, 440, 443, it is held for the reasons before stated that a declaration in ejectment cannot be amended by adding a new demise dated subsequent to the commencement of the suit. Also to the same effect Dudley vs. Grayson, 6 B. Mun., 259.

The clear result is that a tax deed executed on a day subsequent to the commencement of the suit cannot be introduced to pi’ove the legal title of the plaintiff and his light of possession. Under the tax certificate, after the time of j'edemption had expired, the plaintiff, if he was then the holder of the certificate, had an equitable right, but xiot an estate under which he could x-ecover at law, until he acquired the legal title by deed, which resulted fx’om his equitable interest by force of the statute. He was not entitled to the possession or to rents and profits until his legal title was perfected, and that was acquired only by deed.

The court, therefore, erred in admitting the deeds executed May 5,1881, in evidence.

The Judge chai'ged the jury that if the property in question belonged to Jane Lopez as her separate property at the time of' the assessment, but that it was assessed in the name of her husband who lived thereon with her and their family at the time, it was legally assessed in the name of the husband as the occupant. The proof shows that she was the holder of the legal title, and- that it was assessed in the name of the husband who lived with her upon the property.

The statxxte provided (act of 1874, Ch. 1976, Sec. 6,) that “ lands owned by one person and occupied by another may be assessed in the name of the owner or occupant.”

The act of March 6,1845, provides that the property of a married woman, acquired by purchase, &e., shall remain in the care and management of the husband. (McClellan’s Dig., 754.) The ad valorem, principle of taxation prevails in this State in the assessment and levy of taxes upon property. The tax is a lien upon property taxed.

In view of the language of the statute that real estate may be assessed in the name of the owner or occupant, (i. e., person in possession) and that the statute gives the husband the care and management of his wife’s property, the possession thereof by the family is the possession and occupancy of the husband.

We are aware that in Wisconsin it has been held tha,t the wife’s property should be assessed in her name though husband and wife reside together on the land, (25 Wis., 496,) but wo think with Judge Cooley that the rule is there “ applied with great strictness.” (Cooley on Taxation, 278, N. 1.) We regard the assessment of the property in the name of the husband, if he is the occupant, though his wife lives -with him, as a legal assessment of the property by the laws of this State.

Under the revenue law of 1874, a tax deed, duly executed, is 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, his heirs or assigns (section 60), and the burthen of proof to defeat such title is upon the person resisting the same.

In view of the result of this examination of the errors assigned wo deem it unnecessary to examine this case further. Should the controversy be continued between the parties they will have opportunity to present their proofs fully and distinctly upon every controverted point.

The judgment is reversed and the cause remandej, with directions to set aside the verdict and for further proceedings according to law.