Summary
In Thacker v. Biggers, 48 So.2d 750 (Fla. 1950), where the clerk of the court failed to timely mail copies of the published notice of application for tax deed to some of the owners of the land, the court found that the tax deed was considered vitiated.
Summary of this case from Edgewood Boys' Ranch v. ErnstOpinion
June 9, 1950. On Rehearing November 17, 1950.
Appeal from the Circuit Court, Osceola County, Frank A. Smith, J.
Maguire, Voorhis Wells, H.M. Voorhis, Orlando, and O.S. Thacker, Kissimmee, for appellants.
Paul Game and Oliver C. Maxwell, Tampa, for appellee.
Before taking up the questions posed by appellants we shall give a resume of the events leading to the issuance of the tax deed the court canceled at the behest of the appellee.
The appellee is one of the eight children, seven daughters and one son, of Emmie E. Adair, all eight of whom originally owned as tenants in common all the property involved in this suit. On December 5, 1939, by an exchange of deeds among them, the lands were partitioned. No taxes were paid on the properties from 1929 to 1944, and meanwhile the mother, in 1937, had purchased under the provisions of Chapter 18296, Laws of Florida, Acts of 1937, the Murphy Act, tax certificates against the properties issued by the tax collector "to the Treasurer of the State of Florida." Then, in January, 1944, the appellee bought other certificates on the lands owned by herself, her brother, and five of her sisters — the remaining sister had paid the taxes on the portion of the original properties conveyed to her when the division was made.
The clerk of the circuit court, evidently at the instance of the appellee, published notice that unless the later certificates were redeemed, the properties would be sold to the highest bidder on June 5, 1944.
Subsequently the brother redeemed his property, but the sisters did not, and when the sale was held on the appointed day, the appellee, applicant for the tax deed, because of the scarcity of gasoline in the national emergency then existing, did not appear; so the clerk announced the "base bid," the sum of the taxes and costs incident to the sale. The appellants raised this bid, and the lands were sold to them.
In the bid announced by the clerk there was not included the amount paid by Emmie E. Adair for the "Murphy Certificates." It seems that the appellee had informed him that these certificates would be assigned to her by the mother and canceled, but they were never presented for cancellation. Later the clerk refused to deliver a deed to the appellants until they had redeemed the certificates issued to Emmie E. Adair, and when they complied with this demand, he remitted the amount of them to her.
The tax deed to appellants was eventually recorded on August 16, 1944, and two years later appellee's brother and six sisters deeded to her the parcels of land they had received in the initial conveyances.
The appellants first pose the question whether the provisions of Chapter 17457, Laws of Florida, Acts of 1935, F.S.A. § 194.15 et seq., and notes, govern, the tax deed having been executed in 1944 but the certificates on which it was founded having been issued pursuant to sales held in 1937 and 1939. The chancellor specifically answered the question in the affirmative. Counsel for appellants insist this was clear error, and cite to support their position the decisions of this court in Tindel v. Griffin, 157 Fla. 156, 25 So.2d 200, and Sudduth v. Hutchison, Fla., 42 So.2d 355, 358. It was held in the former that the sufficiency of the notice to an owner of an application for a tax deed against his property must be judged by the law in effect at the time of the issuance of the deed, and in the latter that "the statute in force at the time of the application for a tax deed, not the statute in force at the time of the issuance of the tax certificates, regulates the procedure to be followed in obtaining a tax deed."
The appellee contends that the 1935 act governs because of the provision in Section 24 of Chapter 20722, Acts of 1941, F.S.A. § 194.15, that "this section shall not apply to tax certificates issued prior to 1941", and a provision in Section 58 of the act, the repealing clause, that laws in conflict with the act were repealed only so far as they applied to assessment and collection of taxes subsequent to the year 1940. (Italics supplied.)
The appellant, in opposition to this contention, relies upon the decision in Sudduth v. Hutchison, supra, holding, as we have quoted, that the law governing tax deeds is the law in effect when applications for them are made, as distinguished from the law in effect when the tax certificates upon which the deeds are based issue. The certificates involved in that case were issued prior to 1941 for taxes levied before 1940, and the deed was executed, and apparently the application was made, in 1944. The court applied the law of 1941, although an amendment to it with reference to notice to the landowner had been enacted in 1943, F.S.A. § 194.51.
In the case of Heinberg v. Andress, Fla., 45 So.2d 488, 493, we drew attention to this situation and expressly receded "from whatever was written [in Sudduth v. Hutchison] in conflict with what [was] written [in Heinberg v. Andress] with reference to the efficacy of the notice mailed by the clerk." (Italics supplied.)
In justice to counsel in this case it should be said that the opinion in Andress v. Heinberg was not filed until March 10, 1950, after appellant's original brief and appellee's reply brief were filed in this court.
We see no need to dwell on what the effect of a change in the law between the application for a tax deed and the issuance of the deed might be, nor do we find occasion now to decide whether the law of 1935 or the law of 1943 is applicable in the present case because we have the view that the vital point — "the efficacy of the notice" required to be mailed to the landowner by the clerk — is governed by provisions common to both. We find in these laws no real difference in this respect, although their provisions about obtaining the names and addresses of owners differ.
As late as 1939, in the case of Jernigan v. Harrison, 136 Fla. 320, 186 So. 511, this court reiterated what was said in Ozark Corporation v. Pattishall, 135 Fla. 610, 185 So. 333, about the necessity of complying with the statute, Chapter 17457, by notifying the landowner of the application for a tax deed to his land, and quoted Section 4, providing that failure of the owner to receive the notice should not invalidate the deed, a proviso to which we attached significance in Heinberg v. Andress, supra, where we pointed out that in the 1941 act it was provided that failure to mail the notice would also have no effect on the validity of the deed, while in the amendatory act of 1943 this was eliminated so that, as in the 1935 act, only the failure to get the notice was inconsequential.
The chancellor determined that no notice whatever was given the appellee, and no sufficient notice was given the other owners, of the application for the tax deed. Evidently copies of the notice published in the paper were not sent the owners, although the statute requires that "in addition to the publication of the notice [in the newspaper] * * * the clerk of the circuit court shall mail a copy of such notice to the owner of the property * * *." F.S.A. § 194.18. The clerk's certificate was deficient, too, for he certified the very day of the sale that, "within twenty days" of executing it, he "sent by mail 1 copy thereof" to the parties. He was required to certify that he had mailed copies of the notice to the landowners, and it was incumbent on him to mail them "not later than twenty days prior to the date of sale." So far as his certificate established the fact, the notices, if sent at all, might have been mailed the day before the sale. (Italics supplied.)
We do not agree with appellant that the deed could not have been vitiated by defects in the notices or failure to send them properly. As we have indicated, the law of 1941, Section 194.18, Florida Statutes 1941, and F.S.A., providing that failure to mail the notice to a landowner should not affect a deed, has no application here, and under both the 1935 and the 1943 acts the notice was indispensable to transfer to the title by the tax deed.
We conclude that there was ample evidence that the law was not followed in this respect and there is no occasion to interfere with the chancellor's holding.
Affirmed.
ADAMS, C.J., and TERRELL, and CHAPMAN, JJ., concur.
On Rehearing
A rehearing having been granted in this cause and the case having been further considered upon the record and upon briefs and argument of counsel for the respective parties; it is thereupon ordered and adjudged by the Court that the judgment of the Circuit Court in this case be and it is hereby reaffirmed and adhered to on rehearing.
ADAMS, C.J., and TERRELL, CHAPMAN and THOMAS, JJ., concur.