Opinion
December 1, 1950.
Appeal from the Circuit Court of Indian River County, A.O. Kanner, J.
R.S. Swing, Vero Beach, for appellants.
D.C. Smith, Vero Beach, for appellees.
In September 1944, appellants acquired title by tax deed to certain water front lands in Indian River County that were owned by appellees. They brought this suit in equity to quiet title as provided by Sections 66.26 and 66.27, F.S.A. Appellees seasonably filed their answer to the bill of complaint in which they incorporated a counterclaim. On the issues so made testimony was taken and on final hearing the chancellor found for the defendant, Cleveland Trust Company and canceled the appellants' tax deed. The plaintiffs have appealed from the final decree.
The point for determination is whether or not the chancellor committed error when he canceled and set aside the plaintiff's tax deed.
The record discloses that the lands in question were purchased by Walter C. Baker for Cleveland Trust Company in March 1922. The title remained in the Cleveland Trust Company until September 1944, the date of the tax deed which was acquired on a tax certificate issued July 13, 1942, for unpaid taxes of 1941. Appellants also paid taxes for the years 1942 and 1943 but appellee had paid the taxes each year from the date he acquired title to the year 1941.
In April 1942, the agent of Cleveland Trust Company called on the Tax Collector and advised him that he had brought checks to cover taxes on all property owned by appellee, including the lands in question. The Tax Collector advised him that there was considerable confusion among the platting, taxing and collection departments of the county which would require time to adjust, but he gave appellee's agent a statement (introduced in evidence), which he said would fully protect appellee's lands, including the lands in question. This statement is unrefuted and was given prior to the tax certificate. The appellees' taxes were paid for that year and each year thereafter according to the statement of the tax collector without any knowledge of the mistake until notice of the tax sale in August 1944. When this notice was received Cleveland Trust Company sent its check to the clerk of the Circuit Court to cover all outstanding taxes, but it was received the day after the tax sale. It was mailed in time to reach the clerk before the tax sale but the sale day happened to be on Labor Day, the war was on and conditions were otherwise in confusion. This may have accounted for the late arrival of the check.
On this state of facts the chancellor found that appellees made a bona fide effort to pay their taxes, that they were at all times diligent in doing so and would have done so this time except for the mistake of the taxing officers. He applied the principle enunciated by this court in Shuptrine v. Wohl Holding Corporation, 147 Fla. 185, 3 So.2d 524; Golden v. Grady, 160 Fla. 348, 34 So.2d 877 and like cases, which compelled the cancellation of appellants' tax deed. His order was conditioned on the requirement that appellees reimburse appellants in the sum of $1261.98, representing amounts they had paid out for taxes, clerks' fees in securing tax deed, paving and other improvements on the property, all of which appellees had in equity offered to do.
We think the decree finds ample support in the record and is affirmed on authority of the cases cited.
Affirmed.
ADAMS, C.J., and CHAPMAN and ROBERTS, JJ., concur.
THOMAS and HOBSON, JJ., dissent.
SEBRING, J., not participating.