Opinion
July 1, 1952. Rehearing Denied July 30, 1952.
Appeal from the Circuit Court, Broward County, George W. Tedder, J.
Ella Joe Stollberg, Hollywood, for appellants.
Joseph O. Macbeth and Jesse Macbeth, Fort Lauderdale, for appellee.
This is an appeal from a final decree entered by the Circuit Court in and for Broward County, Florida, wherein the appellee, plaintiff below, filed her bill of complaint to quiet title to certain land. Upon examination of the bill of complaint and answer the facts appear to be that on August 6, 1928, the lands involved in this proceeding were sold by the tax collector for Broward County, Florida, for taxes due the Everglades Drainage District for the year 1927, to the Trustees of the Internal Improvement Fund, and certificate No. 3855 was issued to the Trustees; that at the time of the tax sale the owner of the property was Miami Security Company. Chapter 14717, Laws of Florida, Acts of 1931, F.S.A. c. 298 App. § 1530 et seq., among other things, provided that said Everglades Drainage District tax sale certificates should be retained by the Trustees, and that such certificates could be redeemed within a fixed period, and if not redeemed, the fee simple title to the land embraced in such certificates would become vested in the Trustees. Certificate No. 3855 was not redeemed within the redemption period, as provided in said Act. The Miami Security Company attempted to convey the lands involved to Redfield Acres, Inc., by deed dated September 30, 1935, which deed was recorded March 1, 1938. By deed dated August 30, 1937, and recorded July 26, 1939, Redfield Acres, Inc., attempted to convey five lots to George C. Buscher. On April 7, 1936, Rodman M. Price, who appears to have been the president of Redfield Acres, Inc., attempted to redeem the Certificate No. 3855, by paying certain money to the Clerk of the Circuit Court of Broward County, Florida, which money was paid over by said Clerk to the Everglades Drainage District, and the tax records in the Clerk's office covering the land involved in this suit were marked "redeemed". The Trustees of the Internal Improvement Fund conveyed the lands involved herein to Sun Land Company by deed dated June 17, 1943, and recorded July 29, 1943. The Sun Land Company conveyed the lands involved to Hazel S. Mangan by deed dated January 18, 1946, and recorded March 27, 1947. On July 8, 1943, the Everglades Drainage District refunded to the Sun Land Company the money collected by the Clerk on April 7, 1936, as an attempted redemption of Certificate No. 3855, and after the commencement of this suit the tax records in the Clerk's office discloses the entry thereon of the following notation "Certificate not redeemable, erroneous redemption money refunded, see letter from Everglades Drainage District 9-19-49".
On September 30, 1935, the Miami Security Company had lost title to said land by operation of law as provided by Chapter 14717, Laws of Florida, Acts of 1931, F.S.A. c. 298 App. § 1530 et seq., and had no interest in the lands described in the Certificate No. 3855, when it attempted or purported to deed the same to Redfield Acres, Inc.; that the Clerk of the Circuit Court had no authority to permit the attempted redemption on April 7, 1936, and the Clerk did not remit the proceeds of said purported redemption to the Trustees of the Internal Improvement Fund, and the record does not disclose that said Trustees ever had knowledge that any funds had been so received by the Clerk, but the Clerk remitted said funds to the Everglades Drainage District which held the same for approximately seven years. The Everglades Drainage District did not have any interest in or control over said Certificate No. 3855, and the abortive attempt to redeem the same by the transmission of the money by the Clerk to the Everglades Drainage District in no way affected the right, title and interest of the Trustees in and to said land. This agency of the State could not be divested of its title by the actions of the Clerk of the Circuit Court of Broward County, Florida, the Everglades Drainage District, Miami Security Company, and Redfield Acres, Inc., whether such actions were fraudulent or committed with the best motives. Bice v. Haines City, 142 Fla. 371, 195 So. 919.
The appellants have presented the question of fraud in their answer, and the learned Circuit Judge in the Court below made a clear enunciation of his position in his order denying petition for rehearing, which we adopt as part of this opinion.
"Much reliance is placed by defendants upon the purported affidavit of one J.B. Williams. I do not think this affidavit is a public record and therefore it is deemed to have been denied under Rule 37. 30 F.S.A. Certainly, some of the statements contained therein are `new or affirmative matter'. However, should it be held to be responsive to the bill of complaint, and I do not so consider it, the fraudulent acts, if any, were committed by defendant's predecessors in title. In any event, defendant Buscher is not an innocent purchaser and cannot assert that he was deceived for he admits he made no effort to investigate the condition of the title or the taxes prior to his acceptance of the deed. He attempts to cover up his negligence by his charges of fraud. Furthermore, if he subsequently made inquiry as to the taxes, as he alleges, the answers of the Clerk and Tax Collector that there were no taxes outstanding were correct. The Trustees had paid the Everglades Drainage District taxes, the only taxes which were legally assessible against the lands owned by the Trustees. See Trustees of Internal Improvement Fund v. Beach, 5 Cir., 141 F.2d 993. It should be noted also that in the abortive effort to redeem, the Trustees had no part whatever, the entire transaction being with the Board of Commissioners of the Everglades Drainage District which had no interest in the land. The error in the spurious illegal redemption was initiated by the president of defendant's predecessor in title."
Fraud is never presumed but must be proven by clear and convincing evidence. The defendants, by stipulation that this matter come on for final hearing on bill and answer, waived the right to submit testimony and proofs in said cause and by reason thereof failed to carry the burden required to establish fraud. The Court below advised that it would be necessary to take testimony but the parties stipulated that the cause be heard solely on bill and answer and one cannot be heard to complain, at this late date, on matters not contained in the record or supported by the required proof.
The appellants insist upon the point that the Trustees maintained a policy which allowed former owners to redeem land reverted to them by Chapter 14717, long after the redemption period had expired. This position is without merit, because there is no showing in the record that the Trustees ever had any knowledge of the purported redemption, and certainly the Clerk did not transmit the money to the Trustees. In Messer v. Lang, 129 Fla. 546, 176 So. 548, 552, 13 A.L.R. 1073, it is said "The right to redeem at any time is nothing more than a gratuity which may be granted or withheld but, if granted, may be restricted in the discretion of the Legislature."
Actually, no effort was made on the part of appellants or their predecessors to contact the Trustees. The Trustees of the Internal Improvement Fund, the owner of the fee simple title, were completely ignored in all of the transactions concerning the land involved prior to the conveyance of the land to Sun Land Company. The Trustees of the Internal Improvement Fund were the fee simple owners, and were lawfully authorized to convey the land to a purchaser at the time the sale was made to Sun Land Company.
The appellants pose another question, to-wit: Can one rely on the information on the records of the Clerk of the Circuit Court? The answer is generally in the affirmative, but such records must be made in pursuance to the law and not in disregard of the law. In this case the land was shown on the Clerk's tax record to have been sold, for non-payment of taxes, to the Trustees of the Internal Improvement Fund, approximately seven years before the attempted redemption; that by operation of law the land had reverted to the Trustees several years prior to the attempted redemption. The making of an erroneous entry in the records by a ministerial officer in disregard of an existing valid law does not afford any protection to one relying upon such erroneous entry. Ignorance of the law is not a valid defense, because everyone is charged with knowledge of the law.
No error appearing in the record the decree of the lower Court is affirmed.
Affirmed.
SEBRING, C.J., and ROBERTS and MATHEWS, JJ., concur.