Hannay v. Sanchez

Whitfield, J.

(after stating the facts.) — In this suit to quiet title to designated real estate the appeal is from orders overruling demurrers to the bill of complaint.

In support of the complainant’s claim that he “is the bona fide owner in fee simple and in possession of the” land in controversy, it is alleged that complainant’s ancestor acquired title “by virtue of a tax deed from the State of Florida issued under the provisions of an Act approved February 27, 1872, Chapter 1865 Laws of Florida, entitled “An Act to Quiet Tax Titles to Lands,” said tax deed being dated February 15, 1873, duly and regularly executed and recorded in the public records.” The copy of the deed attached as an exhibit, shows that it was executed “for and on behalf of said State” by Hugh A. Corley, Commissioner of Lands and Immigration under “the seal of the Florida State Land Office,” and was “recorded April 26, A. D. 1875. John W. Dickens, Clerk.” The deed has no attesting witnesses. It is further alleged that the State’s title was acquired under and by virtue of a tax sale for the non-payment of taxes, made on 4th day of July, 1849, “upon the tax assessment duly and regularly made upon said lands as the property of Martin Hernandez,” and a tax deed upon such sale issued to the State of Florida; “that said assessment and all proceedings had therein for the sale of said lands in default of the payment of taxes by the said Martin Hernandez, former owner, and the issuance of the tax deed by said tax collector of Orange County to the State of Florida, and all proceedings had under said act approved February 27, 1872, by which the State of Florida conveyed the said lands to the said Yernancio Sanchez, the father of your orator, February 15, 1873, were strictly in conformity with law; that said taxes were duly and regularly assessed, and said sale for non-payment of taxes was duly and regularly had, .and said deed from said tax collector to the State of Florida was duly and regularly issued, and said deed from the State of Florida to the said Yernancio Sanchez was duly and regularly issued and conveyed in fee simple title to said lands to your orator’s father, who immediately went into possession of said lands, and at once returned the same for taxes and continued annually to return the said lands for the taxes as his property during his lifetime, and to pay the annual taxes thereon during his lifetime, and who immediately on receipt of said deed went into actual possession of said lands and remained in actual and undisputed possession thereof from about the year 1875 to the time of his death, and since the death, of the orator’s father, your orator has annually paid the taxes assessed against said lands, which have been annually assessed and are now assessed as the property of your orator, and has been in the exclusive and undisputed possession of said lands . and now is in such possession, claiming to own the same in absolute property;” that “said trace of land is open, uninclosed timber land and has been since A. D. 1849, and prior thereto and vacant and unoccupied except by your orator and his agent and your orator’s father and his agents.”

In stating the defendant’s claim of title it is alleged “that about A. D. 1871, while the State of Florida was the owner in fee of said lands one, Dorothea F. J. Walker, joined by her husband, William S. Walker, claiming an interest in said lands as the daughter of Joseph M. Hernandez, son of Martin Hernandez, the former owner, attempted to convey to one, John C. Baxter, all the interest of said Dorothea F. J. Walker, as devisee under the will of Joseph M. Hernandez. On April 13th, 1878, said John C. Baxter, joined by his wife, made a quit-claim deed to Peter Hannay, of the alleged estate attempted to be conveyed to said Baxter by Dorothea Walker as aforesaid. That Peter Hannay died testate and devised to the defendant, Sarah Elizabeth Hannay, all his estate, real and personal;” “that any claim of estate or interest in said lands by the unknown heirs or devisees of Sarah Elizabeth Hannay orMartinHernandez, or which said unknown heirs may appear upon the record of conveyances recorded in the public records of Yolusia County to have in and to said land is null and void and of no legal effect whatever for the reason that the title held by said Martin- Hernandez in said lands prior to A|. D. 1849, was absolutely divested by the said tax sale and deed made by said tax collector of Orange County to the State of Floria, and that the fee simple title to said lands was conveyed by said deed issued by the State of Florida, February 15, 1873, to Yernancio Sanchez, the orator’s father, and by the continued adverse occupancy of said lands under color of title by your orator’s father and by your orator continually since about the 21st day of April, 1875, to the day of the filing of this bill by reason whereby an indefeasable estate in fee simple is vested in your orator.”

The prayer is that the fee simple title be decreed to be in the complainant, and that all claims and alleged interests, if any, of the defendant and those claiming under her be declared to be null and void; for appropriate injunctions and for general relief.

The allegations of fact contained in the bill of complaint are admitted by the demurrer, and if the conclusions stated are supported by the allegations of fact, such conclusions may be regarded as admitted by the general demurrers. The main question to be determined is whether the deed issued in the name of the State of Florida to complainant’s ancestor was sufficient in law to convey such a title as will support this suit. The deed executed in the name of the State by the chief land officer of the State under the seal of the Florida State Land Office, recites a consideration paid to the State for the land, which land it is alleged and admitted was duly conveyed to the State for non-payment of taxes upon a valid assessment and sale. It is in effect alleged-and admitted that the State acquired the title, and even if the deed from the State be insufficient to convey the legal title to the elder Sanchez, it at least gave'him an equitable interest in the land. As it is admitted that the State acquired title through a tax assessment and a sale and conveyance for non-payment of taxes by the original owner under whom it is alleged and admitted that the defendants claim, such original owner had no title to transmit to the defendants. In view of the character and- legal purpose of the deed executed to Vernancio Sanchez, in the name of the State, by the head of the land department, and under the seal of such department, and the actual record of such deed, and of the policy and effect of subsequent statutes designed to cure defects in deeds executed for of in the name of the State, it is quite manifest that such deed carries a title that will support this suit even if there were no attesting witnesses to the deed when such attestation was apparently contemplated by the form given in the statute, Chapter 1865, Acts of 1872, under which the deed was executed. The allegations as to possession by the complainant are sufficient on the general demurrer to permit the production of the requisite proofs of adverse possession to show rights acquired thereby under the statute.

The orders appealed from are affirmed.

Shackleford, C. J., and Taylor and Hocker, J. J.. concur. Cockrell, J., takes no part.