Townsend v. Beck , 140 Fla. 553 ( 1939 )

The appeal brings for review an order overruling motion to dismiss bill of complaint and also an order striking portions of defendant's answer.

The suit was instituted on the 21st day of April, 1938, in the Circuit Court of Marion County, Florida, to foreclose the lien of a tax deed, which tax deed was issued on the 29th day of October, 1935.

The suit is predicated under the provisions of Chapter 14572, Acts of 1929. Except for the provisions of that chapter a tax deed was considered and held a muniment of title and not the evidence of a lien. The status of a tax deed as the evidence of a lien and the power to foreclose the same was found in Chapter 14572 and not elsewhere, and a foreclosure of a lien so evidenced was specifically authorized by Section 13 of the 1929 Act, supra.

Chapter 17442, Acts of 1935, repealed all the provisions of Chapter 14572 under which a tax deed could be held as the evidence of a lien and foreclosed in equity. That Chapter became effective upon its approval by the Governor on May 21, 1935, which was prior to the issuance of the tax deed involved in this case.

It, therefore, follows that when the holder of a tax certificate elected to procure a tax deed based on certificates which evidenced a lien foreclosable in a court of chancery under its general equity jurisdiction to foreclose liens, he abandoned his right of election to foreclose the lien and elected to take a new and independent title subject to the control of the law as it existed at the time of the issuance of the tax deed.

So it is, the complainant had no standing in a court of equity to maintain the suit and same should have been dismissed.

For the reasons stated, the order appealed from is reversed with directions that the cause be dismissed.

So ordered.

TERRELL, C. J., and THOMAS, J., concur.

WHITFIELD, J., concurs in opinion and judgment.

Justices BROWN and CHAPMAN not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.