Boston and Florida Atlantic Coast Land Co. v. Alford , 150 Fla. 296 ( 1942 )

On November 7, 1938, Ricker Alford, and others, paid to the Clerk of the Circuit Court of Palm Beach County, Florida, under the provisions of Chapter 18296, Acts of 1937, Laws of Florida, known as the Murphy Act, the sum of $232.57 for State and County taxes for the years 1926 and 1927. Suit in chancery was brought to foreclose the tax liens and enforce payment, not for the sum of $232.27, plus interest, the amount paid the Clerk therefor, but for the full face amount of each of the certificates, with interest at the rate of 18 % per annum. The prayer of the bill to foreclose the tax liens was granted, and on final hearing a decree was entered for the full face amount of the certificates, plus interest, which totaled the sum of $4,204.36. The final decree entered in a court of equity sustained a net profit of $3,978.79 on an investment of only $232.57.

Confusion exsits on the question of whether or not the case at bar is ruled by Green v. Northern Investment Corp., 140 Fla. 386, 191 So. 778, or previous holdings of this Court beginning with the case of Lang v. Quaker Realty Corp., 131 Fla. 179,179 So. 144, and reiterated in Smith v. Lindsay, 133 Fla. 306,182 So. 910; Shaw v. Hamm, 133 Fla. 722, 183 So. 19; Banks v. Shaw,144 Fla. 550, 198 So. 341, and Shaw v. Morrison, 145 Fla. 443,199 So. 566.

Sections 13 and 14, and other provisions of Chapter 14572, Acts of 1929, Laws of Florida, authorized the owner or holder of a tax certificate to maintain a suit in equity and to recover the full face amount of the tax certificate, with statutory interest, attorney's fees and all court costs. Chapter 17442, Acts of 1935, Laws of Florida, specifically repealed the several provisions supra of Chapter 14572. Section 896 C.G.L., as amended by Chapter 18297, Acts of 1937, Laws of Florida, and Section 5034 C.G.L., authorize a suit in equity to enforce the payment of tax liens. The certificates here involved are not controlled by Chapter 14572, supra.

Section 5034 C.G.L. provides that all liens of any kind, whether created by statute or the common law, may be enforced by proceedings in chancery. Section 896, C.G.L., as amended by Chapter 18298, Acts of 1937, provides that "tax liens may be enforced by suit in equity."

Section 5 of Article IX of the Florida Constitution authorizes counties, towns and cities to assess and impose taxes for county and municipal purposes. State and county taxes by statute become a lien on the property taxed superior to all other liens and are of equal dignity with municipal tax liens. See City of Sanford v. Dyal, 104 Fla. 1,142 So. 233.

Municipal tax certificate liens were before the Court when each of the above cited cases were approved. Likewise Section 5034 C.G.L., providing for the enforcement of "all liens of any kind by proceedings in chancery," and this Court, in Lang v. Quaker Realty Corp., 131 Fla. 179, 179 So. 144, speaking through Mr. Justice Buford, in part said:

". . . It was well settled that the holder of the tax certificate bought from and assigned by the proper official becomes vested with the ownership of and the right to foreclose the lien evidenced by the certificate for the face amount of the certificate in cases where the provisions of Chapter 14572, Acts of 1929, applied. But in this case the complainant must rest its right to foreclosure of its lien upon the inherent jurisdiction of courts of chancery to foreclose liens. See State ex rel. Dofnos Corp. v. Lehman, et al., 100 Fla. 1401. In such cases, absent statutory provision to the contrary and absent contract creating the lien, the complainant is limited to that which equity will require. In equity and good conscience the complainant is entitled to recover no more than a sum equal to the sum paid for the certificates with interest thereon from the date of the expenditure."

The inherent jurisdiction of a court of chancery to foreclose tax certificates as distinguished from the want of statutory authority is likewise developed in Shaw v. Hamm, 133 Fla. 722,183 So. 19, when this Court, speaking through Mr. Justice Buford, in part, said:

"One who comes into the Chancery Court to foreclose a municipal tax certificate or improvement lien must come invoking that court's inherent equity jurisdiction without the aid of statute and must come with clean hands. The court of chancery will not lend itself in the exercise of only its inherent jurisdiction, and without statutory requirement, to the exacting of an unconscionable profit. The assignee of the certificates and improvement liens might have stood on his rights to use the same as the basis for the issuance of a tax deed and acquired title without invoking the intervention of a court of equity. He did not pursue that course. He was not entitled, absent statutory requirements, to have the aid of the court of equity any further than to require the delinquent taxpayer to reimburse him to no greater extent than the amount of his outlay in the purchase of the certificates and assessment liens. . ."

In Banks v. Shaw, 144 Fla. 550, 198 So. 341, this Court acted independently of statutory authority in considering a bill to foreclose municipal tax certificates where the recovery of the full face amount of the certificate, plus interest, was sought. Mr. Justice Buford, in behalf of the Court, in part, said:

". . . in the instant case we say that in equity and good conscience the plaintiff is entitled to redeem the certificates and to have the lien which is vested in the defendant by reason of the purchase of the certificates and to payment of subsequent taxes, cancelled upon the payment of the plaintiff to the defendant of an amount equal to the amount which the defendant actually paid for the certificates and the subsequent taxes, together with interest from date of payment to date of the decree.

"Equity is not concerned with the identity of the plaintiff, nor of the defendant. It is purpose of equity to do justice between the parties, regardless of the order in which they may appear on the court docket.

"If in a suit to foreclose a tax sales certificate by the holder thereof by assignment he may not require for redemption the payment of more than the certificate cost him with interest, it is because the owner should in equity and good conscience not be required to pay more than that amount for redemption."

In Shaw v. Morrison, 145 Fla. 443, 199 So. 566, the same rule was reiterated, when the Court, through Mr. Justice Buford, said:

"The holder by assignment of a tax lien may either proceed under the applicable statutes to acquire a statutory tax deed or may proceed in equity to foreclose the tax lien.

"In this case the tax lien holder elected to proceed in the court of equity and caused the title holder to be summoned into court to defend the foreclosure. The title holder answered the bill, admitted plaintiff's right to foreclose for the amount actually paid for the assignments of liens and, by timely amendment, offered to do equity by paying to plaintiff the amount which plaintiff had paid for the assignments of liens, with legal interest and costs, and thereby redeem the property involved from the several tax liens sought to be foreclosed. . . .

"There being no statutory provision authorizing recovery of attorney's fees by plaintiff in suits to foreclose tax liens, such fees are not recoverable. See Webb v. Scott, 129 Fla. 111,176 So. 442; Leland v. Andrews, 129 Fla. 429, 176 So. 418.

The amount of recovery was properly limited to the amount actually paid by the plaintiff for the assignment of the tax liens with interest and costs. See Lang et ux. v. Quaker Realty Corporation, 131 Fla. 179, 179 So. 144; Shaw v. Hamm, 133 Fla. 722, 183 So. 19."

The legal rights of the holder or owner of tax certificates are controlled by the statutes in force and effect when the tax sale was made and the certificate assigned. The certificates here involved are controlled by the several provisions of Chapter 18296, Acts of 1937, Laws of Florida, known as the Murphy Act. This Court, in construing Section 6 and other provisions of the Murphy Act in Green v. State ex rel. Northern Investment Corp., 140 Fla. 386, 191 So. 778, had before it in a mandamus proceeding the amount of money necessary under Chapter 18296 supra to be paid by the owner to the Clerk to redeem, thereby precluding the issuance of a tax deed by the Clerk of the Court to the holder or owner of tax certificates.

The question propounded for adjudication therein is viz. (text 140 Fla. 388-9):

". . . relator by its attorneys, presented to respondent clerk at his office, said tax certificates together with receipts for subsequent and omitted taxes and requested said clerk to accept relator's application for a tax deed upon said lands and to issue to realtor a tax deed covering said lands in accordance with the provisions of the statutes of Florida relating to the procedure for obtaining a tax deed by the holder of said tax sale certificates, and at the same time tendered to said clerk $11.20 representing his fees, costs and charges for issuing said tax deed; 'and presented to said clerk a statement showing the full amount due upon said tax certificates and taxes, calculated at the original statutory rate and upon the original principal amounts of said tax certificates and taxes, to be $1,504.83, and asked that the tax deed issue for this amount plus the amount tendered by relator in payment of the clerk's fees, costs and charges for issuing said tax deed, unless those entitled by law to redeem said lands pay said respective amounts; that relator's request was refused by the respondent because of his belief that the only amount recoverable upon said tax sale certificates and taxes is the amount bid and paid therefor at the sale held under Chapter 18296, together with interest at the rate of 3 per cent per annum from the date of such sale; . . ."

The answer to the question posed supra is viz.: (text140 Fla. 398-9)

"The result is that the amounts required to be paid for redemption in this case are (1) the $40.10 paid for the tax certificates and subsequent or omitted taxes; (2) interest thereon at 3 per cent per annum from the date of the tax certificate to July 16, 1939, two years after the sale under Chapter 18296; (3) the face of the oldest of the three tax certificates; (4) interest thereon at 18 per cent per annum for the first year from July 16, 1939, 10 per cent per annum for the second year, 8 per cent per annum thereafter, 'but not less than 5 per cent of the face of the tax certificate'; (5) all clerk's costs and expenses incurred in obtaining the tax certificates, etc., Secs. 985 (770) Perm. Supp. C.G.L. See also Sec. 999 (143) Perm. Supp. C.G.L. Under Chapter 18296 the oldest tax certificate and all subsequent certificates or omitted taxes are sold and redeemed together. Under prior statutes each certificate and omitted tax is redeemed or sold separately." (Emphasis supplied.)

It was the chancellor's view and holding that Chapter 18296,supra, as construed by his court in Green v. Northern Investment Corp., supra, grants the power to a court of chancery to foreclose tax certificates, and, likewise, grants courts of chancery the power and authority to decree the payment of the face amount of the certificates plus statutory interest and court costs as prescribed in Section 6 of Chapter 18296, supra. We have thus presented for adjudication in this case two questions: (a) whether or not Chapter 18296, supra, grants power and authority to courts of chancery to foreclose tax certificates and to decree the payment of the face amount of the certificate as prescribed by Section 6 of the Act; and (b) whether or not the provisions of Chapter 18296, supra, are applicable to and shall govern courts of chancery, or are merely directory to circuit court clerks when computing the amount necessary to be paid by an owner of land desiring to redeem and preclude the issuance of a tax deed?

The title to Chapter 18296, Acts of 1937, supra, is viz.:

"An Act Relating to and Concerning Taxation and Providing for the Sale of Tax Certificates Together with Subsequent Omitted or Levied Taxes; and Further Providing for Vesting of Title to Land Covered by Tax Certificates in State of Florida."

The title of Chapter 14572, Acts of 1929, Laws of Florida, contains a provision for equity jurisdiction to foreclose tax certificates, and likewise the procedure to follow, and the language is viz.: "Providing for the Foreclosure in Equity of Tax Certificates and Deeds and for the Procedure in Such Cases." The constitutionality of Chapter 14572, supra, was sustained by this Court. See Ridgeway v. Peacock, 100 Fla. 1297,131 So. 140; Ridgeway v. Reese, 100 1304, 131 So. 136. It is inescapable that if courts of equity are by Chapter 18296,supra, granted power to foreclose tax certificates and decrees the payment of the face amount with interest and costs, then the title of the aforesaid Act should contain language granting and authorizing said grants as required by Section 16 of Article 3 of the Constitution. Likewise, the body of the Act should by clear, definite and concise language grant such power and authority, because Acts of this nature are strictly construed. See Messer v. Lang, 129 Fla. 546, 176 So. 548, 113 A. L. R. 1073; State ex rel. Bechard v. Leatherman, 129 Fla. 585, 176 So. 563.

There is no language in the title or body of the Act, or any reasonable inference to be drawn therefrom which grants or confers upon courts of chancery additional power to hear and determine tax certificate foreclosures. If such suits are brought under statutory authority, other than the several provisions of Chapter 18296, supra, then the chancellor in determining the amount of recovery, shall hold that the same shall not be the face amount of the certificate with interest, but that amount paid for the certificate by the purchaser to the Clerk, with interest and costs. Equity abhors penalties and forfeitures and actors appearing therein must come with clean hands and at all times do equity.

The case of Green v. Northern Investment Corp.supra, determines the rule governing and controlling Clerks of the Circuit Courts in computing the amount due on certificates sold under the Murphy Act where an application for a tax deed is made and a redemption is desired to preclude the issuance of a tax deed.

It therefore follows that the original opinion of reversal for further proceedings not inconsistent with this opinion is adhered to.

It is so ordered.

WHITFIELD, and TERRELL, JJ., concur.