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Lance v. Smith, 123 Fla. 461, 167 So. 366

Facts

M. A. Smith, as liquidator of the State Bank of Orlando & Trust Company, sought to recover possession of a lot in Orlando from M. W. Lance. The dispute arose after a tax deed was issued to William J. and Ruth Foster, which was later conveyed to Viola C. Paul. The bank had previously obtained a mortgage lien on the property, and the liquidator attempted to redeem the property from tax liens but was denied by the clerk. The court ultimately found that the tax deed was void due to procedural errors.

Smith, as liquidator, succeeded W. H. Tunnicliffe in that position in February, 1933; he succeeded W. L. Tilden in February, 1930, who was appointed in August, 1929. In June, 1925, Harris and wife owned the land and executed a mortgage upon it to Wright, Warlow & Co. to secure the payment of a promissory note for $5,000 payable in June, 1928. The note and mortgage were assigned to the bank.

Issue

Did the clerk of the circuit court properly issue the tax deed to the property in question, and does the plaintiff have the right to recover possession of the property?

Did the clerk of the circuit court properly issue the tax deed to the property in question, and does the plaintiff have the right to recover possession of the property?

Rule

A tax deed for lands sold for taxes shall not issue until the clerk has given at least thirty days' previous notice of the application for the deed by publishing it in a newspaper, and all fees and expenses of notice must be paid in advance by the applicant.

Section 1000, Comp.Gen.Laws 1927, provides that no tax deed for lands sold for taxes shall issue until the clerk of the circuit court shall have given at least thirty days' previous notice of the application for deed by publishing same once a week in some newspaper in the county, and all fees and expenses of notice shall be paid in advance by applicant for deed.

Analysis

The court analyzed whether the tax deed was valid by examining the timing of the notice publication and the issuance of the deed. It concluded that the deed was executed and delivered after the required notice was published, thus fulfilling the statutory requirements. The court emphasized that the delivery of the deed is the final act necessary for its validity, and since the deed was not delivered until after the notice was filed, the deed was deemed void.

The circuit judge reasoned that as the tax deed was dated September 30th and the proof of publication of the notice of application for the deed not filed by the clerk until October 1st, the following day, the clerk of the court failed to ‘acquire jurisdiction because he failed to observe statutory requirements necessary’ to the issuing of the deed.

Conclusion

The court reversed the judgment, ruling that the tax deed was void due to the clerk's failure to observe statutory requirements, and thus the plaintiff was entitled to possession of the property.

The judgment of the court is reversed.

Who won?

M. A. Smith, as liquidator of the State Bank of Orlando & Trust Company, prevailed because the court found the tax deed under which the defendants claimed was void due to procedural errors.

M. A. Smith, as liquidator of the State Bank of Orlando & Trust Company, prevailed because the court found the tax deed under which the defendants claimed was void due to procedural errors.

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