Opinion
March 25, 1952.
Appeal from the Circuit Court, Dade County, William A. Herin, J.
Pritchard Kurtz, Miami, for appellant.
Nathanson, Oka Spaet and William Brody, Miami Beach, for appellees.
This is an appeal from a final decree sustaining exceptions to a report of the findings and recommendations of the Special Master and granting relief to Homeridge Properties, Inc., the defendant and cross-complainant, appellee here, upon an amended cross-bill.
The plaintiff in the Court below, the appellant here, filed a bill of complaint on the 11th day of March, 1949, for the purpose of quieting title to certain lands in Dade County, Florida. She alleged that she was the owner in fee simple of the lands by reason of the tax deed dated March 30, 1932. She further alleged as grounds for relief that she had been in possession of said property since the date of the tax deed and that she had paid all taxes upon said property since the year 1932 and had made extensive improvements to the property. At the time she acquired the tax deed in 1932 the title to the property was in the Commercial Bank and Trust Company, as trustee. More than 5 years later, November 13, 1937, a successor trustee was appointed and on January 30, 1938, the successor trustee conveyed all right, title and interest in the property to Homeridge Properties, Inc., one of the defendants and the cross-complainant in the Court below, and appellee here.
The first time Homeridge Properties, Inc. filed any contest or action to assert any claim to this property was when it filed its answer and cross-bill on April 4, 1949. This answer admitted the allegations about the tax deed and the plaintiff's possession of the property but denied said possession had been adverse to the right, claim and interest of the defendant or that the plaintiff obtained any title by virtue of the tax deed. The answer then alleged that Commercial Bank and Trust Company owned the property on June 5, 1925, and on said date executed and delivered an agreement for deed to W.L. Rabb, in which he agreed to pay a certain sum for the property including $205 in cash and the balance in 36 monthly installments. In said agreement it was provided that Rabb would pay all taxes subsequent to the year 1924, and upon making all of the deferred payments, Commercial Bank and Trust Company could deliver a special warranty deed to Rabb. On the 2nd day of September, 1929, Rabb sold, assigned, transferred and delivered to the appellant here all his interest in said agreement. The answer alleged that the appellant was a vendee in possession of the property and could not obtain a tax deed, and that the deed was nothing more than evidence of the payment of taxes.
On the same date as the answer, April 4, 1949, Homeridge Properties, Inc., the appellee here, filed its cross-bill setting forth the above mentioned allegations and alleged that there was a balance due upon the contract of $614.98 together with interest and sought to foreclose the contract.
The appellant moved to dismiss the cross-bill on the grounds that it affirmatively appeared that more than 20 years had elapsed since the maturity date of the contract, and that it was, therefore, barred by the Statute of Limitations. The appellant also moved to strike Paragraph 9 of the appellee's answer on the ground that the contract itself provided that if the payments were in default for a space of 30 days, said vendee "shall be deemed and held to have abandoned the property and this contract shall be deemed cancelled and terminated".
In due course an order was made denying the motion to strike Paragraph 9 but granting the motion to dismiss the cross-bill with leave to file an amended cross-bill.
In the time allowed for amendments the appellant here filed an answer to Paragraph 9 of the appellee's answer in which she alleged that she had assigned her contract to J.S. Lang who went into possession of the property and continued in possession until September 17, 1926, when a hurricane practically destroyed the improvements on the property. It was alleged that Lang abandoned the property and made no payments on the contract and that appellant did not go into possession of the property until March 30, 1932, or nearly 6 years after the property was abandoned by Lang.
Within the time allowed on November 14, 1949, the appellee here filed an amended cross-bill alleging the same facts as those alleged in the original cross-bill and then prayed that the tax deed of the appellant be cancelled of record and that the agreement for deed be cancelled of record. At the same time the appellee filed a motion to strike the appellant's answer to Paragraph 9 of the answer of the appellee.
On December 16, 1949, the appellant filed an amendment to the bill of complaint to take the place of her answer to Paragraph 9 of the appellee's answer. This amendment simply re-alleged the same facts as those set forth in the answer to Paragraph 9 of the answer of the appellee, to wit, the contract to Lang and his possession; the hurricane and partial destruction of the property; the abandonment of the property by Lang and no payments made by Lang; and that she again went into possession of the property March 30, 1932. She further alleged the terms of her original contract to the effect that if default was made for 30 days the vendor should be entitled to reenter and take possession and that the said vendee should be deemed and held to have abandoned the property and the contract deemed cancelled and terminated. She, therefore, alleged that at the time she obtained the tax deed and went into possession of the property in 1932 the contract was by its own terms cancelled and terminated.
On December 16, 1949, the appellant filed her answer to the amended cross-bill and set forth the Statute of Limitations as a bar to any relief on said cross-bill and re-alleged the facts set forth in the bill of complaint and further alleged that after she went into possession of the property in 1932, she rebuilt the house which had been demolished by the hurricane, made extensive repairs to the property and paid all taxes and improvement liens upon the property from 1932 to December 16, 1949. She further alleged that the appellee had slept on his rights and was guilty of laches; that at the time the trustee's deed was delivered to the appellee, the appellant was in actual possession of said property and that the appellee was not a proper person to complain about the tax deed or the manner in which same was obtained since fraud is personal to the one defrauded.
Later the appellee filed a motion to strike the answer to the amended cross-bill and the Court in due course made an order striking paragraphs 7, 8, and 13 of such answer, which paragraphs set forth: (1) the contract had been abandoned before she obtained the tax deed and she was, therefore, under no obligation to pay the taxes, (2) the appellee was guilty of laches in waiting over 17 years after its deed from the trustee before bringing any suit and more than 20 years from the maturity date of the contract, and (3) that she was in actual possession of the property at the time the appellee received the deed from the trustee and, therefore, appellee could not question said tax deed because fraud is personal to the one defrauded.
After the pleadings were settled on April 21, 1950 the cause was referred to a Special Master who took voluminous testimony and on June 16, 1950, he filed his findings and recommendations. The Master found the equities to be with the appellant and against the appellee and recommended that a final decree be entered quieting title in the appellant and removing the contract for deed between the appellant and J.S. Lang as a cloud upon appellant's title and that the relief prayed for by the appellee be denied. His recommendations were based upon the following findings:
"1. The original agreement for deed between the Commercial Bank Trust Company, and Rabb, had been cancelled and terminated prior to the issuance of the tax deed to plaintiff, in 1932. I further find that as such contract had been terminated as of such date, that the plaintiff was under no duty to pay the taxes upon said property, concerned herein, and could accordingly, acquire a valid tax deed.
"2. That the defendant, Homeridge Properties, Inc., had been guilty of laches in allowing plaintiff to remain in undisturbed and undisputed possession of the property for a period of over seventeen years. This especially so, as Homeridge Properties, Inc., knew of the adverse claim of plaintiff at the time it acquired its title in 1938.
"3. That the defendant, Homeridge Properties, Inc., cannot in this action, set forth the invalidity of the tax deed of the plaintiff by the authority of the case of Nelson et al., v. Sullivan, et al., [Fla.] 40 So.2d 114."
The appellee filed exceptions to the Master's report and on April 6, 1951, a final decree was entered by the Chancellor. In this decree the Chancellor found that the equities were with the appellee and against the appellant; sustained all exceptions to the Master's report; ordered the cancellation of the contracts hereinabove mentioned and that they be stricken from the record of the Clerk of the Circuit Court; ordered the tax deed stricken from the public records and that the same was of no force and effect; quieted the title of the lands in question in the appellee; and then provided: "* * * and it is further
"Adjudged, Ordered and Decreed that the complainant be and she is hereby ordered and directed to deliver possession to the aforedescribed real property to the defendant and cross-complainant, Homeridge Properties, Inc., a Florida corporation, within 30 days from the date of this decree".
This appeal is prosecuted from the above-mentioned final decree. Many errors are alleged. It will not be necessary to consider or pass upon all of them.
The essential questions concern the validity of the tax deed and whether or not the appellee was guilty of laches so as to bar it from any recovery or whether or not the Statute of Limitations applies as to any rights under the original contract for deed.
There is little, if any, conflict in the evidence as to the material questions involved. At the time appellant obtained the tax deed she was not in possession of the property; the original contract was in default, and by the very terms of the contract and the actions of the contracting parties, as disclosed by this record, the same had been terminated long prior to the issuance of the tax deed. As the contract had thus been terminated, it is plain that the appellant was under no obligation or duty to pay the taxes under the terms of the said contract. There is no dispute about the fact that the appellee obtained its deed to the property in question after the termination of the contract and after the appellant had obtained the tax deed and when the appellant was in actual and known possession of the property. In the case of Nelson v. Sullivan, Fla., 40 So.2d 114, it was contended that a tax deed in that case amounted to nothing but a payment of the taxes. The same contention is made here. In that case the Court said: "Tax deeds are of legal force and effect as provided by law. However, in order to grant relief against fraud, a court of conscience may under proper circumstances hold them void or decree a trust to be imposed upon the title so acquired. Relief in equity against fraud is personal to the one defrauded. Nelson makes no claim of fraud as against him by the procurement of the tax deed; therefore as to him it stands with full legal force and effect."
The same principle applies here. We do not decide and it is unnecessary to decide whether or not any fraud was practiced upon the Commercial Bank and Trust Company, as trustee. It had passed from the picture. "Fraud is personal to the one defrauded." As pointed out in the above-cited case, it may have been that the Commercial Bank and Trust Co., as trustee, could have claimed that the tax deed be decreed as a payment of taxes and if sufficient facts and circumstances warranted, relief might have been granted to the Commercial Bank and Trust Co. Whatever the equities may have been between the Commercial Bank and Trust Co. and the appellant here they were personal. They never became personal equities of the appellee and as against the appellee the tax deed was of full legal force and effect.
The defense of laches or the Statute of Limitations cannot be ignored. The tax deed was obtained on March 30, 1932, and recorded on April 2, 1932. The appellee here obtained his deed from the successor trustee on January 30, 1939, which was more than 5 years after the appellant had obtained the tax deed and during which time she was in actual, open and notorious possession of the property. The appellee did not file any contest or action to assert any claim to this property until it filed its cross-bill on April 4, 1949, which was more than 17 years after it obtained its deed from the trustee and more than 20 years from the maturity date of the contract. Under these facts the Statute of Limitations applies because under Section 95.11 all actions upon any contract, obligation or liability founded upon an instrument of writing under seal can only be commenced within 20 years.
The 20 years Statute of Limitations (Sec. 95.11), the 4 years statute with reference to tax deed (Sec. 196.06, F.S.A.), and laches applied to the appellee in this case.
The case of Travis Co. v. Mayes, 160 Fla. 375, 36 So.2d 264, 266, appears to be very much in point and is conclusive in this case. In the opinion in that case the Court said:
"The Master and the Court found the plaintiff to be guilty of laches on these facts: The suit to foreclose was brought 25 years after the mortgage was executed and 17 years after the date of its maturity. The defendant had been in possession fifteen years under an alleged tax deed. At the time he went into possession the building on the lot was in bad repair, the foundation was crumbling, the roof was leaking, the house had never been painted and had no bath room. The defendant repaired the foundation, put on a new roof, installed plumbing upstairs and down, wired the house for electricity, paid all taxes thereafter assessed against the lands and is still in possession. Since going in possession, defendant has paid $2416.75 in taxes and improvement liens on the property and during the same period he has paid $2328 in repairing the building.
"Defendant also averred that she was in actual possession of said lands for four years after she secured her tax deed and that no suit to recover possession was brought within that time. It is alleged that defendant went into possession of the lands described in the bill of complaint, in June 1926, and had been in actual continued adverse possession for more than seven years next prior to filing the bill of complaint and that within one year after taking possession returned said property for taxation and has each year thereafter paid the taxes thereon, including all improvements liens."
Other errors were assigned by the appellant, but, in view of the conclusion which we have reached as above set forth, it is unnecessary to discuss or decide them. Wrong rules of law were applied by the Chancellor in this case. The findings and recommendations contained in the Master's report were correct and it was error to sustain the exceptions to the said report and enter a final decree in favor of the appellee.
Reversed for further proceedings in accordance with this opinion.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.