Stowe v. Brickell

194 So. 609, 141 Fla. 726

• Court: Supreme Court of Florida
• Decided: February 13, 1940
• Status: Published

Opinions

Buford, J.

The history of this case is stated in an opinion by .Mr. Justice Brown and need not be stated in further detail.

The record shows that Olive B. Brickell, then mortgagee of certain premises became by purchase and assignment to her the owner of certain tax sale certificates covering the lands for the years 1926, 1927 and 1928 and that while she was the owner and holder of such certificates, in 1933, William M. Maddox foreclosed tax deed issued on the certificate for the unpaid taxes of 1929 and made Olive B. Brickell party defendant to that suit, alleging that she claimed some interest in' the land.

Decree pro confesso was taken against Olive B. Brickell. Therefore, she is bound by decree in that case.

It appears that the law is well settled in this State that where a mortgagee not obligated or bound to pay taxes acquires tax certificates on the property covered by the mortgage, such acquisition of tax certificates constitutes a payment of the taxes and the mortgage lien is thereby increased to the extent of such payment of taxes. (See Miller, et al., v. Ellenwood, et al., 121 Fla. 551, 164 Sou. 140.)

When the mortgage lien was so increased by such payment of taxes it was the duty, under the factual conditions of this case, for the holder of the mortgage and the involved tax certificates to set up her claim in the original suit brought to foreclose a tax deed based on a tax certificate subsequently issued, to which suit she was made a party, and, failing to set up her claim in that suit, she is now in a suit by her against Maddox estopped to rely upon the lien of her certificates against the purchaser at the sale under foreclosure of the tax deed by Maddox.

The final decree in the Maddox suit adjudicated,

“It Is Further Ordered that in the event of sale that the defendants, Olive B. Brickell, a widow, individually and as Executrix of the estate of William M. Brickell, deceased, George M. Brickell and Lizzie Brickell, his wife, Brickell Estates Co., a Florida Corporation, and United States of America, and all other persons claiming by, through or under them, any interest in' the land described, be barred and forever closed of all equity of redemption and right, title and interest or claim in and to said premises and every part and parcel thereof.”

This decree becoming absolute, forever foreclosed Olive B. Brickell of any title to or lien' upon any interest in the land involved.

So the decree should be reversed.

So ordered.

Reversed.

Terrell, C. J., Whitfield, Chapman and Thomas, J. J., concur. Brown, J., dissents.