Opinion
May 19, 1950. Rehearing Denied June 8, 1950.
Petition for review from the Circuit Court, Hillsborough County, Harry N. Sandler, J.
Henry H. Cole, Tampa, for petitioner.
Macfarlane, Ferguson, Allison Kely, Tampa, for respondents.
The plaintiff in the suit below has instituted this certiorari proceeding under Rule 34 to procure a review of an order denying a motion to strike an answer and counterclaim interposed to his bill of complaint.
The record shows that on January 12, 1940, the Treasurer of the State of Florida filed in the Circuit Court of Hillsborough County a bill of complaint, pursuant to chapter 18368, Laws of Florida, 1937, to foreclose Tax Certificates Nos. 4053 to 4056, inclusive, on certain specifically described lands in Hillsborough County, for State and County taxes for the year 1935. Roy D. Skinner and ____ Skinner, his wife, M.M. Simmons, individually and as agent, Martin Outdoor Advertising Agency, a corporation, and the City of Tampa, a municipal corporation, were made parties defendant to the suit and due service of process was had on each of the defendants. The defendant M.M. Simmons, who at the time was the owner and holder of record of certain tax sale certificates outstanding against the specifically described property for state and county taxes for the year 1934, filed his appearance in the cause but subsequently allowed the entry of a decree pro confesso against him for failure to plead or answer. The other defendants to the suit filed appropriate answers to the bill of complaint and evidence was submitted on the issues. On March 14, 1940 a final decree of foreclosure was entered by the Circuit Court, ratifying, approving and confirming the entry of the decree pro confesso against M.M. Simmons, and the report and recommendations of the Special Master that the plaintiff was entitled to foreclose his certificates; finding that the City of Tampa had an outstanding valid and subsisting lien against the property of equal dignity with the lien of the plaintiff, for City taxes lawfully assessed against the property; and decreeing that unless the amounts found to be due the plaintiff and the City of Tampa were paid by the defendants other than the City of Tampa within two days from the entry of the decree, the lands should be sold by a special master to satisfy the liens of equal dignity held by the plaintiff and the municipality, any surplus arising from the sale of the lands to be paid into the registry of the court to abide the further order of the court.
The defendants failed to pay the amounts required by the final decree and the lands were sold at public outcry to Doyle Campbell and S.B. Owen to satisfy the liens. Subsequently, the circuit court entered a decree approving, ratifying, and confirming the sale and report by the special master and decreeing that "the Defendants, Roy D. Skinner, and, if married, his wife ____ Skinner; M.M. Simmons, individually and as agent; and Martin Outdoor Advertising Company, a Corporation of Hillsborough County, Florida; and all persons claiming by, through or under said Defendants subsequent to the commencement of this suit * * * be forever barred and foreclosed of all rights, title and interest, or equity of redemption in said real property hereinabove described." Thereafter Doyle Campbell acquired the interest held by S.B. Owen in the land and went into possession under his master's deed.
Approximately nine years later, the defendant M.M. Simmons having died in the meantime, the executors of Simmons' estate filed with the clerk of the Circuit Court for Hillsborough County their application for a tax deed to the above-mentioned property; the application being based on the identical State and County tax certificates held and owned by M.M. Simmons at the time of the tax foreclosure proceedings and by reason whereof he had been made a party to the suit.
Soon after the filing of the application for tax deed Doyle Campbell brought the present suit to have the Circuit Court of Hillsborough County declare "That the foreclosure proceedings aforesaid be held and declared to have terminated and foreclosed all rights and interests of any nature whatsoever arising out of and by reason of said Tax Certificates. * * * That same be found not to constitute a lien or claim against the properties aforesaid and that they be cancelled of record by decree of this Court", and that the Clerk of Hillsborough County be restrained and enjoined from issuing the tax deed upon the application based upon said certificates.
In due course the executors filed an answer and counterclaim to the bill, in which they alleged the parity of the certificates owned and held by them with those certificates held and owned by the Treasurer of the State and the City of Tampa between whom the proceeds of the foreclosure sale had been divided; alleged that the validity of the certificates had never been specifically adjudicated in the foreclosure decree; and averred that the Executors were not bound by the final decree and order confirming sale entered nine years prior thereto and hence that the certificates should be declared in full force and effect and a tax deed issued thereon.
The plaintiff moved to strike the answer and dismiss the counterclaim, and the motion was denied. The plaintiff thereupon brought the present interlocutory certiorari proceedings for the purpose of reviewing the order.
It is our view, on the issue presented, that Simmons by the service of summons upon him in the suit instituted by the State of Florida in 1940 to foreclose its tax liens, was brought into the suit and given due notice of the allegations of the bill and the relief sought by the plaintiff. He thus had the opportunity to assert any claim he had and he refused to do so, even though he was under a duty of disclosing such claim. By the order of the court reciting and confirming his default in pleading, the bill became taken as confessed against him and any final decree warranted by the allegations of the bill became binding upon him to the same extent as if he had appeared in the suit and contested these allegations. After the final decree was entered, Simmons stood by and allowed the property to be sold at public auction to the petitioner Campbell, and all of the proceeds to be paid by order of the court to the State of Florida and the City of Tampa in satisfaction of tax liens equal in dignity to the liens claimed by the decedent.
Under these circumstances the legal representatives of Simmons should not now be heard to say nine years later that the final decree was not binding upon Simmons or that the purchaser at the public sale did not acquire a valid title to the lands as against all persons who were made parties defendant in the suit; nor should they be allowed to say that such title as the purchaser acquired should be subordinated to the claim belatedly asserted by the legal representatives of the deceased Simmons.
For the reasons stated the petition for certiorari should be granted and the order complained of should be quashed.
It is so ordered.
ADAMS, C.J., and CHAPMAN and HOBSON, JJ., concur.