MINSHEW et al.
(Supreme Court of Florida, Division B. June 11, 1906.)
On the 28th day of August, 1902, B. B. Minshew and W. V. Carter brought an action of ejectment in the circuit court of Volusia County against E. E. Ropes for the recovery of a tract of land lying in said county, described as lot 3, except south east 10 acres, section 29, township 15 S. range 28 E., containing about 65 acres, and for mesne profits.
The defendant pleaded not guilty and the bar of statute of limitations.
A trial was had, which resulted in the following verdict being rendered by the jury in favor of the plaintiffs April 11, 1905: "We the jury, find for the plaintiffs, and that they are entitled to a fee-simple estate to lot 3 except southeast 10 acres, section 29, township 15 5., of range 2S E., and fix their damages at $3.00. Upon the said verdict the following judgment was entered the court April 12, 1905:
It is thereupon upon consideration thereof ordered, adjudged, and decreed that the plaintiffs, B. B. Minshew and W. V. Carter do have and recover of and from the defendant herein, E. E. Ropes, the following land as described in the declaration and verdict and an estate In fee simple thereon, to wit: Lot 3, except the southeast 10 acres, Section 29 township 15 S. of range 28 E., together with the sum of $3 for their damages herein, and the sum of $26.43 for their costs in the behalf expended, and that the plaintiff have execution therefor.
The defendant below, who is plaintiff in error here, seeks reversal by writ of error The plaintiffs sought to recover, in this case by virtue of a tax deed dated 6th day of January, A. D. 1898, based upon a sale made in 1894 for the unpaid taxes of 1893. The deed was admitted in evidence by the court and the defendant offered in evidence, show that plaintiffs said deed was void. A certified copy of the tax hook for 1893. As far as related to the land in controversy, by showing that the land sold was assessed as Valentine Dollar, Assignee, which admitted in evidence by the court.
And the defendant also offered a certified copy of the record advertisement of said land for unpaid taxes of 1893, as show owner thereof was stated as Dallen Association, which was admitted into evidence by the court.
The parties having concluded and admitted their evidence, the defendant requested the court to charge that, "If the jury believe from the evidence that the assessment gives the name of one person or the owner and the advertisement the name of another, the jury will find for the defendant."
The court refused to give the charge. The defendant excepted and assigns the refusal of the court to so charge as error.
When this case was here before we said: "The tax law of 1893 (Acts 1993, p. 36, c. 4115, 61) makes a tax deed prima facie evidence of the regularity of the proceedings for the valuation of the land by the assessor to the date of the deed, inclusive. The defendant had a right to overcome this prima facie evidence by proof showing the deed to be void. After the introduction of evidence tending to show the deed to be void, he should have prepared a charge informing the jury what effect should be given by them to his rebutting testimony, and requested the judge give it." Ropes v. Minshew & Carter,. 47 Fla. 212, text 214, 36 South. 579, 580.
Chapter 4010, p. 1, Acts 1891, and chapter 4115, p. 3, Acts 1983, provide: "The assessor shall set down in the assessment rolls, following and opposite the description of the lands, the name of the owner or person in whose name the return is made; and when the land has not been returned and when the assessor has no means of discovering the name of the owner the assessor shall enter the word "Unknown" in the column of the assessment roll provided for the name of the owners or persons making return."
Chapter 4115, 51, p. 30, Acts 1893, provides: "If the taxes upon and real estate shall not be paid before the first day of April of any year, the collector shall advertise and sell in the manner following: He shall make out a statement of all such real estate, specifying the amount due on each parcel, together with the cost of advertising and expense of the sale, in the order in which the land was assessed, and such list shall be published. * * * A copy of the advertisement shall be recorded in the county clerk's office within ten days after said sale. Such advertisement shall be in the following form.". Then follows the form in which can be seen on page 31, Acts 1893. In this form must be stated the name of the owner of the land, a description of the land, and the amount of the taxes and costs.
In every step it is evidently intended and the statute so requires, that the name of the owner or person in whose name of the owner of person in whose name the return is made shall be the same in the assessment as in the advertisement and sale. Bettison v. Budd, 21 Ark. 578p; Marx v. Hanthorn C. C.) 30 Fed. 579, affirmed 148 U. S. 172, 13 Sup. Ct. 508, 37 L. Ed. 410.
The assessment roll introduced in evidence showed that the land in question was assessed as the property of "Valentine Dollar, Assignee," while the record of the advertisement of said land showed the name of the owner to be "Valentine Dallen Association."
This record evidence of the assessment and advertisement of the land showed that the name of the owner or person in whose name the return was made was not the same in the assessment and in the advertisement, and this record evidence was not controverted by any other evidence, and was conclusive of that fact, and overcame the statutory prima facie evidence of the regularity of the proceedings from the valuation of the land by the assessor to the date of the deed, and rendered the plaintiff's tax deed void. Bettison v. Budd, supra; Daniel v. Taylor, 33 Fla. 636, text 654, 15 South. 313. The charge asked for by the defendant ought to have been given by the court.
The defendant requested the court to charge the jury as follows:
"The court instructs the jury that the right of the plaintiffs to recover in this case rests on the strength of their own title, and they cannot recover by the showing defects in the title of the defendant."
This is substantially what we have heretofore held, that the plaintiff in ejectment must recover on the strength of his own title and the the weakness of his adversary's title. Burt, Adm'r, v. Fla. So. Ry. Co., 43 Fla. 339, 31 South. 265. The court erred in refusing to so charge the jury.
The verdict of the jury is contrary to law, in that it fails to find the right of possession in the plaintiffs to the lands described therein. Section 1515, Rev. St. 1892.
The verdict simply finds that the plaintiffs are entitled to a fee-simple estate to the lands described. This is not a finding of the right of possession in the plaintiffs. Asia v. Hiser, 22 Fla. 213.
The judgement entered in this case is defective in the same particular. For the reasons stated the verdict cannot be sustained, and it was error to enter a judgement thereon. Hoodless v. Jernigan, 46 Fla. 213, 35 South. 656.
For the errors found, the judgement must be reserved, and a new trial awarded; and it is ordered, at the cost of the defendants in error.
TAYLOR and HOCKER, JJ.. concur.
SHACKLEFORD, C. J., and COCKRELL, J., concur in opinion.
WHITFIELD, J., disqualified.
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