Citations
- 21 Fla. 353
Full opinion text
The Chief-Justice
delivered the opinion of the court:
This was an action of ejectment by appellant for the “ west half of water lot 38 in the city of Jacksonville.” The plaintiff based his claim on a tax deed for taxes due for the year 1879. The tax was assessed on said lot to one Seymour. The title of Seymour was based on a judgment of one Pickett against the Florida Central Railroad. The referee to whom the case was referred by the court below made the following report of his findings and judgment, which was approved by the court. * * *
“This cause having been submitted on the issues joined, the evidence and arguments of counsel.
“I find as matter of fact that the plaintiff holds and claims title under a tax deed from the State of Florida to him, dated June 7th, 1881, of the west half of water lot thirty-eight (38), of the city of Jacksonville, county of Du-val, and State of Florida, being the property in controversy in this suit, which deed was in pursuance of a tax' sale made June 7th, 1880, for unpaid taxes assessed to W. L. Seymour, for the year 1879. That the said property was conveyed by Mary J. Morris, administratrix of estate of Alexander Holmes, deceased, by deed, dated September 21st, 1868, and that the defendant corporation and its predecessor have been in possession of the same from the date of said deed to the present time.
“That James A. Pickett, Jr.,being out of posssesion of said property and without a valid title shown in him, executed an ■ instrument in the form of a mortgage of said property to oné Paran Moody, dated March 11th, 1874. That the same was assigned by said Moody to W. L. Seymour, and thereafter the same was foreclosed by decree of the Circuit Court for the Fourth Judicial Circuit in and for Duval county, in chancery, on suit of W. L. Seymour, against James A. Pickett, Jr., and under said decree the same was offered for sale, bid in by the said W. L. Seymour, and a deed of conveyance of the same was executed to him by J. W. Whitney, special master in chancery, appointed in and by said decree, which deed was dated Nov. 4th, 1878. That said Seymour was not in the possession or occupancy of said land in the year 1879. I find as matter of law that the property in controversy was subject to taxation for the year 1879. That at the time plaintiff’s rights accrued to him under said tax deed, the act of 1874, of the State'of Florida, chapter 1976, had been repealed, whereupon the defendant in attacking the tax title of the plaintiff is not restricted to proof that the property was not subject to taxation or that the taxes had been paid or the property redeemed. That the law under which said property was assessed for the year 1879, required that the same be assessed in the name of the owner or occupant. That the said James A. Pickett, Jr., being out-' of possession and without title to said property, it was not competent for him to execute a valid mortgage of the same; and that .the said Seymour acquired no title to said property by the deed made by virtue of said foreclosure proceedings. That the said Seymour being neither the owner nor occupant of said land during 1879, the assessment of the same to. him for that year was void and vitiated all the proceedings thereunder subject thereto, including the said tax sale, and the tax deed of the same to the plaintiff who took no title thereby, and is not entitled'to recover the.said property. I therefore find the defendant not guilty. ■ It is therefore considered and adjudged that the plaintiff is not entitled to the premises of the lands in controversy in the-case, to wit: the west half of water lot (38) thirty-eight of the city of Jacksonville, Duval county, Florida, and that the defendant go hence without a day, and that the Florida Central and Western Railroad Company, the defendant, do have and recover of and from the plaintiff, Francis F. D’Engle, its costs in this hehalf expended, taxed at-dollars and-cents.”
The appellant appeals from said judgment and assigns errors:
1. The referee erred in the following finding of facts i (a.) That the defendant was in possession of the lot in suit from the 21st September, 1868, to the present time, (b.) That said James A. Pickett, Jr., was out of possession and without a valid title when he executed his mortgage, (c.) That W. L. Seymour was not in possession or occupancy of the lot in controversy in 1879, when it was assessed for ■taxation.
2. The referee erred in deciding as matter of law: (a.) That the appellee (defendant below) was not restricted to ■proof that the property was not subject to taxation or that the taxes had been paid or the property redeemed, (b.) That the assessment of the lot in controvery, under which the tax sale was had, was void. (