Leonidas W. Spratt, Appellant, vs. Miles Price, et al., Appellees, 18 Fla. 289

Mr. Justice Westcott delivered the opinion of the court. This is an action of ejectment brought in the Circuit Court for Duval county by the appellant, Spratt, against .the respondents -to recover certain real estate with mesne profits. Defendants pleaded the general issue and' a special plea on equitable' grounds. Plaintiff took issue on the first and demurred to the second. • The demurrer was sustained with leave to defendants to amend. This they did and interposed a plea on .equitable grounds.

After trial and hearing, and motion for new trial, overruled, there was judgment for the defendants.' From .this judgment plaintiff appeals." The equitable plea sets up substantially that Miles Price, on the 14th of September, A. I). 1875, was, and still is, the owner of the land ; that on that day he sold it to Jonathan J. Comfort, taking from Comfort a mortgage for a large part of the purchase money; that he foreclosed his mortgage and bought in the property under a decree rendered July 14,1877; that except the time embraced between the 14th of September, A. D. 1875, and the 14th of July, A.

D. 1877, he has always owned the land in fee simple; that on the 5th of May, A. D. 1876, Leonidas W. Spratt and Francis F. L’Engle were partners, and were the attorneys and agents of Miles Price and of Jonathan J.

Comfort in respect to the property in controversy ; that said firm for valuable consideration agreed to protect the interests of the said'Price and Comfort by paying for them all taxes assessed against said property whenever the said P. & C. were unable to do so, and to buy in said property at tax sale if necessary to protect it, and to do all things necessary to protect the interest of Miles Price as mortgagee, Miles Price agreeing to repay them all sums which they might advance; .that on the 5th of May, A.

L. 1876, the property claimed was sold at a tax sale by the Collector-of said county as the property of Miles Price, and that said Miles Price procured the said firm of Spratt & L’Engle to purchase said property for him, and that F. F. L’Engle purchased the same; th*at the certificate of sale, without the knowledge of defendant, was issued in the name of F. F. L’Engle, and that the said L’Engle after-wards assigned the certificate to plaintiff, and that after, wards, on the 9th of-June, A.

D. 1877, the plaintiff obtained in his own name a tax deed for said property; that since the date of the tax sale Miles Price has paid to the said firm of Spratt & L’Engle amounts of money aggregating about the sum of eight hundred and sixty-six dollars to reimburse them, for the sum advanced at said tax sale. Defendants in this plea allege that the claim now made by Spratt is based upon this tax title. "We first dispose of the matter of this plea. The Circuit Court, upon the motion of plaintiff, or in the absence of such motion, should sua sponte have stricken it out.

This plea as a defence to the action was a defence at law, avail-' able under the plea of the general issue. To permit it is to simply embarrass the trial and encumber the record. There is no doubt of the power of the Judge in a plain case to strike it out. 17 Fla., 631. Viewed in the light of a special plea, setting up a defence at law, such should have been the action of the Circuit Court. Viewed in the light of an equitable defence under the statute there is nothing in it.

These equitable defences in common law actions are available only where they set up equities, which in the event of a judgment at law would entitle the defendant to relief against such judgment. Sec. 69, Chap. 1096, Laws. Here this defence is available at law, (26 Wis., 614; 7 Watts, 472; 34 Mich., 380; Cove on Tax., 347,) and in the event of a judgment equity would not enjoin the judgment for that reason. 2 Barb. Chy. Rep., 108; 3 John. Chy., 356; 94 U. S., 652.

We would remark further, in order to save the question, that under the *English common law procedure, act “ defences on equitable grounds ” are not pleadable in actions of ejectment. Here there may be a different rule in consequence of a want of similarity in the rules regulating pleading in ejectment under the English statutes and the law regulating it here. But this question is not. material as the plea is plainly subject to the objections mentioned. Thus disposing of these preliminary questions we reach the merits of this controversy.

The defendant, Price, was the admitted owner of the land on the first of March, A. D. 1875, the facts which determined the person against whom was to be made the assessment for that year. Under the law the tax was properly assessed against him. See. 6, Chap. 1976, Laws. • On the 14th of September, A. D. 1875, Price sold the land to Comfort, taking a mortgage for the purchase money. On the 5th of May, A. D. 1876, the land was sold for the taxes of 1875, and E. E. L’Engle became the purchaser.

Before the date for redemption expired, L’Engle assigned and transferred his certificate of sale to the plaintiff, Leonidas ~W. Spratt, and he, Spratt, on the 9th of June, A. D. 1877, received a tax title or deed from the County Clerk for the property. This is the case which the plaintiff insists is made on his behalf. In reply to this case the defendant insists that L’Engle and the plaintiff were his agents under an agreement to pay these taxes for which the land was sold on the 5th of May, A.

D. 1876, and that no title passed to plaintiff because the proprietor of the newspaper publishing the notice of sale failed to forward a copy of each number of his paper containing such notice to the Clerk of the county. This is the case of the defendant so far as it consists of an assault upon plaintiff’s title. In addition to this, however, the defendant insists that, admitting the validity of the deed of the plaintiff, he has as against him a better title because of a subsequent purchase by him at a tax sale for the taxes of 1876.

The tax for that year was assessed against Price’s mortgagor, Comfort, the assessment being made at a time when the plaintiff or his assignor was the holder of the certificate of sale for the taxes of 1875. Plaintiff’s tax title was dated the 9th of June, A. D. 1877. The sale under the assessment against Comfort, at which Price purchased, was on the 3d of July, 1877, after the date of the deed absolute to Spratt. The plaintiff insists that no title passed to Price under this second sale, because, as mortgaged, it was Mb duty to pay the tax, and that his purchase was simply a payment.

Under this state of facts the defendant insists- that while as to Comfort he may have occupied the relation of mortgagee, that as to Spratt and his deed and to the land he was a stranger, if the deed to Spratt was effectual to convey the whole estate. If this position be correct, then it is an end of the case. To its consideration we address ourselves. The determination of this question involves an accurate appreciation of the nature of the revenue law of 1874, as well as the relation occupied by those acquiring interests under sales for taxes had thereunder.

Under the provisions of this act the tax was assessed against the lands, not against the interest or estate of the owner or party in possession. Under the provisions of

section 6, “all lands shall be assessed in the county” * * * and “ lands owned by one person and occupied by another may be assessed in the name of the owner or occupant,” and those “ not occupied may be assessed as non-resident.” The advertisement required under

section 50 of the act is notice of sale to pay the amount of taxes “ duly assessed against said lands.” The interest passed by the deed after tax sale is the fee, in the land, and the sale had is to be of “ so much of each parcel of land as shall be sufficient to pay the taxes, costs and charges thereon.” It is also true that in this statute there is nothing requiring a sale of the personal property before resorting to the land. The tax assessed under this statute constituted -a lien upon the land. 106 Mass., 30; Cooley on Taxation, 305; Hilliard on Tax., 402; 2 Bay., 248.

This lien attached and had relation to the time at which the assesment was made, that date being under this statute the first of March. This land, in the year 1875, being assessed to its then owner, Miles Price, the defendant, the lien attached on the first of March, A. D. 1875. 45 Mo., 130; 33 N. J., 177. What was the nature of this lien, and to what extent did the subsequent sale of the land by Price to Comfort, and Comfort’s relation of mortgagor and owner, and Price’s relation of mortgagee as between each other have upon the lien which thus attached ?

Of the nature of this lien the Supreme Court of the United States says : “ The lien for taxes does not stand upon the footing of an ordinary incumbrance. It attaches to the res without regard to individual ownership, and when it is enforced by sale, pursuant to the statute prescribing the mode of assessing and collecting them, the purchaser takes a valid and unimpeachable title.” 93 U. S., 428. Spratt’s title, therefore, was absolute, and relieved of any estate of Price or Comfort. Under our statute any person claiming any of the lands, or any interest therein, may redeem within one year after the sale.

In this case there was no redemption. During that period, and before the title was made to Spratt, the tax for 1876 was assessed against the mortgagor and occupant, Comfort. This tax, as the preceding one, was a lien upon the land, because it was assessed according to law against the owner or occupant. Spratt’s relation before his title became absolute was that of a party entitled to a lien for his purchase money and interest as prescribed by statute. He,had no title, legal or equitable, during the period allowed for redemption. He could not bring trespass. He was not entitled to rents and profits.

As between himself and the owner he could not enforce this lien. Under the statute this lien, by non-redemption and the execution of a deed to the purchaser, would develop into a legal title,' or upon the expiration of the year without a deed into an equitable title. The taxable estate during this period remained in the owner or occupant having the right to redeem.

Some of the cases sustain the view that had there been another sale for taxes assessed before the period for redemption had expired, the purchaser at the prior sale (Spratt) could have bid at the sale, acquiring all the right remaining in the parties entitled to redeem. 4 Mich., 579; Hilliard on Taxation, 532. The first purchaser would have been under no obligation to pay this second tax.

His relation and rights were fixed by the statute, and any interest acquired by a purchaser at a subsequent tax sale during the period when the right to redeem existed, and when the statute gave him a lien with right to a deed after one year, must have been subordinate to this right. In other words, the purchaser at the subsequent sale would have acquired -the right to redeem. Tweed vs. Metcalf, 4 Mich., 587; 6 Watts, 512; 33 Penn. State, 94; 26 Ark., 48; 31 Cal., 269; 15 Minn., 245; 55 Penn. State, 188; 1 Doug., (Mich.) 276.

What we say in reference to the interest acquired at a second tax sale before the period for redemption under the prior one has expired is not here involved. A reference to this subject is made simply to more clearly define the relation of the purchaser at the first sale to the land.

Spratt, by his deed of June 9,1877, having acquired an estate divested of any interest of Price or Comfort, the only remaining question is, what was the effect of the second sale, the defendant, the purchaser at such sale, Price, being at the time of the assessment the mortgagee, his mortgagor, Comfort, being the occupant against whom the assessment was made ? It is insisted by plaintiff that it was the duty of Price, as mortgagee, to pay this tax, and that his purchase at the tax sale simply operated as a payment.

While as between mortgagor and mortgagee such a purchase may enure as a payment under some circumstances, as in a case where he has contracted to pay the tax, or where the mortgagee is in possession, yet “ generally a mortgagee not in'possession is under no obligation to pay the taxes on the mortgaged property, and there is no reason why he may not acquire title to the property by a fair purchase at a tax sale.” Jones on Mortgages, §713. The position taken by .the appellant here is, that it was the duty of Price to pay this tax, and that his purchase under the circumstances operated simply as a payment.

If such was his duty, within the meaning of the authorities defining the matter of duty in this connection, the position is well taken. At the time of the assessment here, Comfort, his mortgagor, was in possession. In contemplation of the revenue law he was the owner in possession, and the assessment was made against him in strict conformity to the statute. The term duty in this connection must be given that signification which the authorities give it.

In reference to the payment of taxes the terms duty and obligation are used in two senses, the first being in reference to the sovereign imposing the tax, the second being in reference to individuals. The matter of duty to the sovereign is fixed by the legislative enactment imposing the tax. The matter of obligation to individuals arises from the legal or equitable relation of the parties. In neither case is the measure of the obligation fi-xed by the mere fact of an interest or estate in the land.

A simple tenant at will, a party with a naked possession, can be the subject of an assessment if such be the statute; and so far as individual obligations are concerned they may arise out of fiduciary relations, and may be so assumed by persons having no interest or estate in the land, not even possession, as to prohibit their becoming a purchaser at a tax sale. "We will examine the cases bearing upon each relation so far as they affect this case. In the case of Blackwood vs.

Van Vliet, 30th Michigan, 121, Judge Cooley for the court says: “To preclude any person from making and relying upon a purchase of lands at tax sale there must be something in the circumstances of the case which impress upon him a duty to the State to pay the tax, or something which renders it inequitable as between himself and the holder of the existing title that he should make the purchase.” In his work on Taxation Judge C. on several occasions uses the terms “ duty to the government ” in this connection, and looking to his work alone we confess we were at a loss to understand precisely what he meant.

To the opinion of this eminent jurist great respect-is due, whether that opinion be as a Judge or text writer, and it is fortunate that we have a judicial opinion of his in which he interprets this language, thus leaving no doubt as to his view in the premises. We see this language used in the case above cited.

In that case he says also: “ While a party is not to build up a title on his own neglect of duty, yet if he can show he owes no duty in the premises he is as free to become a purchaser at a tax sale as any other person.” He then proceeds to determine what constitutes this “ duty to the government,” and says: “ Where lands are occupied our statutes have always required them to be assessed to the owner or occupant, and where thus assessed it becomes a duty which the person assessed owes to the State to make payment.

If not occupied the owner owes to the State a like duty. * * * * It may also have been assessed as non-resident, in which case the duty to pay would rest on the owner.” * * * “ The obligation to' the State was fixed by the assessment.” In his work on Taxation, speaking of the cases announcing the doctrine that mere possession where the tax was assessed fixes upon the possessor the duty to pay and precluded him from becoming a purchaser at a sale for taxes, after remarking that the reason for such a view is not made very clearly apparent in the decision which he is criticising, he says : “ It seems to us that it is deserving of more consideration whether where parties stand to each other in the position of adverse claimants to land either of them can insist that the other shall discharge a duty to the government for his protection,” Of a purchase by an adverse claimant generally he says: “ The State then not being wronged in the purchase it woidd seem that whatever individual objects to it ought to be able to point out how and in what particular it wrongs him.” • The Supreme Court of Pennsylvania announce the general proposition that an individual not standing in any relation of trust, and implicated in no fraud as to the owner of the land, may acquire a title by tax sale, and that his holding a prior defective title will not prevent his purchase. 27 Penn.

State, 160, 165. The Supreme Court of Wisconsin, while declaring in one case (30 Wis., 102,) that a person holding the legal title as trustee cannot purchase certificates of tax sale and claim as against his cestui que trust the interest allowed by the statute, it refers in another ease with approval to cases holding that such is not the relation between mortgagor and mortgagee, among which cases is that of Harrison vs.

Roberts, 6 Fla., 711, and the head note in the last named ease in Wisconsin, 20 Wis., 586, states the law to be that “ a mortgagee (not in possession) may acquire title as against the mortgagor by purchase under a superior lien either at a tax sale or a sale under a prior judgment.” In the ease of Waterson vs.

Devoe, 18 Kan., 223, the Supreme Court of Kansas hold that “ a mortgagee not in possession of real estate is under no obligation to pay the taxes on the mortgaged premises,” and that “ the mere relation of mortgagor and mortgagee will not prevent the person so related from acquiring title to the mortgaged premises by purchase at a tax sale.” This was the case of a mortgagee who, prior to his purchase of the tax certificate, had foreclosed his mortgage. This case is well considered and the opinion able.

The defendant, Price, in the case at bar had filed his bill to foreclose his mortgage, and had thus assumed an adversary position against his mortgagor when he purchased at tax sale. The only other cases we find having a bearing upon this subject are cases from Illinois and New York.

Of the following cases from Illinois, Judge Cooley, in his work on Taxation, remarks : “ The Illinois cases are very emphatic that a mortgagee, like a trustee, cannot affect the rights of the mortgagor by purchasing the property at a sale for delinquent taxes accruing on the premises.” After earelul examination of these cases we cannot agree with this conclusion. We think that’ they do not sustain the broad proposition that as between mortgagor and mortgagee the latter cannot acquire a good title through a tax sale.

In the case reported in 26 Ill., 507, the court, in discussing the question whether a payment of taxes by the mortgagee shall or shall not enure to the benefit of the mortgage, the question being as to its effect upon the statute of limitations, say: “ After a foreclosure, or an effort to foreclose the mortgage by decree or deed, which purports to have that effect, the presumption then arises that all acts done in reference to the property are done under a claim of ownership by the mortgagee.” In the latter case reported in 44 Ill., 367, the court say : “ The mortgagee in possession would be bound to pay the taxes,” and speaking generally of the relation it is said that “ we do not say that a mortgagee can in no case buy in an outstanding titlé and hold it against the mortgagor without a right of redemption, by the latter, but we do say that a mortgagee cannot buy in an outstanding title under an arrangement with the mortgagor, that it is to be held like the mortgage, subject to redemption, and when the title is acquired turn around and insist that he has purchased as a stranger.” In this case the purchase of the outstanding title had been made by the mortgagee “ with the consent ” of the mortgagor, under an agreement that “ he was to have further time to redeem.” Of the following case in New York Judge Cooley says : “ It is not very clear how far Williams vs.

Townsend, 31 New York, 411, was designed to lay down a contrary doctrine,” meaning the doctrine of the Illinois cases as understood by him. We cannot coincide with this commentary. The case was that of a mortgage providing that the mortgagor should pay the taxes and assessments upon the mortgaged premises, and in default of so doing that the mortgagee might discharge the same and collect them as a part of the mortgage.

The Court of Appeals decide that the mortgagee might at his option pay the tax or purchase at a tax sale, the court holding that the principle that a person who is placed in a sitution of trust or confidence in reference to the subject matter of a sale, or has a duty to perform which is inconsistent with the character of a purchaser on his own account, does not apply to a tax sale purchase by a mortgagee, saying that the mortgagee “ had no duty to perform to the plaintiff ” (the mortgagor) “ or toward the mortgaged premises that precluded her from buying at the tax sale.” The necessary conclusions we reach in the ease are: First.

That Price, by virtue of his relation of mortgagee to this land, the assessment being made against Comfort, the mortgagor and occupant, as required by the statute, owed no duty to the State which required him to pay the tax. Second. That as to Spratt, in whom the legal title vested by his purchase, Price was a stranger, occupying no fiduciary relation, and entirely competent to purchase his (Spratt’

s) interest and estate in the land at a tax sale. That every marf who claims an estate in the land has a claim or right against every other person making a claim by which his adversary claimant is bound to pay the taxes is not the law. In this view of the case the questions of agency and proof of advertisement are imrnaterial, and we say nothing of them. This disposes of the objection of plaintiff to the title of defendant. There is but one other matter requiring attention : when the tax deed of Price was offered in evidence it bore date since issue joined in this case.

There was no plea puis darrien continuance, and there was an exception for want of “ relevancy and pertinency to the issue joined.” Th§ general rule in ejectment is unquestionably that any title acquired subsequent to issue joined must be set up by a plea puis darrien continuance. 1 Wallace, 374; 7 John., 194; 9 ib., 60; 11 ib., 424; 19 ib., 168; 3 Strob., 504. In this case the purchase of Price was on the third of July, 1877, and he was entitled to a tax deed one year thereafter if therehvas no redemption. This would have been before issue joined.

Under the statute it was the duty of the purchaser to pay and of the Collector to demand and receive the money when the sale was made, and the presumption here is that such payment was made. It is thus evident, unless the deed related back to the day upon which the party was entitled to it, that there was error in this action of the court. If, however, it did so relate the defence was available under the .general issue. 3 Cow., 75.

The doctrine of relation is a fiction of law adopted by the courts solely for the purposes of justice, and is only applied for the security.and protection of persons who stand in privity with the person that initiated proceedings for the land, and acquired the equitable claim or right to the title. 9 Wall., 315; 4 John., 230; 12 John., 140. The limitation to its operation is that-it shall do no. wrong to strangers. 4 John., 234.

The person hei’e claiming is the party himself who initiated the proceéding, and there is no injustice to Spratt, as • his deed remains intact, and if there is a loss to him it is the result of his own neglect to redeem. After the expiration of the year from the sale Price had an equitable title to the land. Giving effect to the doctrine of relation, in an action of ejectment, so as to perfect a clear equitable title, not antedating by such relation the time of the acquisition of the legal title claimed adversely, but leaving it all the -validity which its holder claims for it, cannot be unjust.

The holder of the legal title is left where he-can recover all he is in equity entitled to.' For these reasons we think that the doctrine of relation is applicable, and that the deed was admissible under the general issue. In ejectment it is required that the plaintiff shall not only have title when the suit is brought, but when it is tried also. 32 Penn. State, 378. That is this case. Here under the operation of the doctrine of relation, admitting for the sake of argument the title of plaintiff at the1 commencement of the suit, the defendant had the .title at the time of trial. . .

Where, upon a general review of the case, giving‘.the appellant every fair construction of the faets in his favor, an application of the principles .of law. controlling Hie-matters involved justifies the judgment, it must be affirmed. May’s Executors vs. Seymour, 17 Fla., 730; 5 Fla., 268, 465; 6 Fla., 482; 8 Fla., 391. This is-that case. Judgment affirmed. The preceding opinion was delivered at the January Term, A. D. 1881.

The appellant having obtained leave filed the following petition for a rehearing after the adjournment of the term: The appellant respectfully petitions the court for a rehearing upon the following points : 1. The ditty of Price to pay the tax assessed upon the lot in controversy in 1876. 2. The doctrine of relation back applied to Price’s deed acquired under a purchase at tax sale for the tax so assessed, making said deed admissible under the general issue. Judge Cooley, in Connecticut Life Insurance Company vs.

Butte, reported in the Central Lav Journal January 28, 1881, page 86, refers to the ease of Blackwood vs. Van Vliet, 30 Mich., 118, holds that a mortgagee, as well as the mortgagor — there were two mortgagees in this case — owes to the State the duty of paying the tax, and that the tax title the mortgagee acquires, being based in part upon his own default, “ simply enures to the protection not the destruction of the regular title.” “ It certainly cannot be said,” says he, “ that the second mortgagee owes any duty to the first mortgagee to protect his lien as against tax sale.

Neither on the other hand does the first mortgagee owe any such dmy to the second mortgagee, or to the owner. To the State each one of the three maybe said to owe the duty to pay the taxes, and the State will sell the interest of all if none of .the three shall pay. As between themselves the 'primary duty is on the mortgagor ; but if he makes default either of the mortgagees may and one of the two must do so, or the land will be sold and his lien extinguished.

But in such case where each has the same right, payment by one is allowed to increase the amount of his incumbrance.” “When therefore each mortgagee has the same interest in making payment and the same right to do so, and the same means of compelling repayment, it may well be held that a purchase by one shall not cut off the right of the other, because it is based as much upon his own default as that of the party whose lien he seeks to extinguish.” Here is a clear unqualified recognition of the principle upon which Price’s purchase at tax sale operated only as a payment.

In the case at bar Price was, by the provisions of his mortgage, authorized expressly to increase the mortgage debt by the amount of taxes which he should be put to pay. This court in its reasoning conclusively shows that during the period for which the assessment under which Price purchased was made, Spratt had no title, legal or equitable, to this lot; it was subject to be retained in Comfort or Price during this interval by either paying off the incumbrance.

In this case, during the period for which the assessment under which Price purchased was made, the interest of Price in this lot was greater than that of Comfort, as Comfort was insolvent, and the lot, the only security'Price had for the debt, was not worth the amount of the debt secured by it. The duty which Price owed to the State for its protection of this property was greater than the duty which Comfort owed for its protection during this interval, as he (Price) had the greater interest.

The duty which Price owed for its protection of this.property during this interval is expressed in the tax levied on the lot as his contribution to the expenses incurred by the State in its protection, and was actually using this machinery of the State for the recovery of the lot. The amount then that Price paid on the so-called tax purchase was simply an expression of the amount which ought to have been contributed by him to the State for the protection of the rights which he was seeking to enforce.

Now to hold that this payment to the State operates to reinvest Price with the title he had previously forfeited to the State, or Spratt claiming under the State, shocks the moral sensibilities- again. -The doctrine of relation -back is a. legal fiction never used to promote injustice. "When Spratt began the suit he had no conception that Price had a certificate of tax sale ; in fact he had no deed when he tendered the general issue on SpratPs declaration.

SpratPs attorneys were not informed that a defence would be made under the general issue on a tax deed acquired after the issue; they had no opportunity of ascertaining, nor do they know now whether the assessment under which Price purchased was regular. To affirm this case is to put the sanction of this court upon the admission of evidence operating a surprise against which no degree of vigilance, forecast or prepai’ation could guard. Tour petitioner submits that the case decided is one of first impression in the State of Florida, and the decision is erroneous in holding— • First.

That a mortgagee who is permitted by law to redeem, from tax sale the mortgaged lands can b j purchase at tax sale acquire the mortgaged property. Second. In affirming the propriety of admitting in evidence a tax deed acquired by 'defendant after issue joined, without a plea of puis darrien continuance, under the circumstances of this case. ...