Bird v. Benlisa

STATEMENT BY MR. JUSTICE BREWER.

This was an action of ejectment brought in the circuit court of Orange county, Fla., on May 25, 1887. The action was subsequently removed to the circuit court of the United States for the northern district of Florida. A trial in that court resulted in a verdict and judgment for the defendant in error, plaintiff below. That such judgment was correct, is conceded, unless plaintiff's right to recover was defeated by a tax-deed, with accompanying record and possession. That deed purported to be based on a sale for the taxes of 1873, and the description therein was as follows: Section 39, township 16, of range 27; section 37, in township 17, of range 27; and section 38, in township 17, of range 28,-containing 9,909 3/4 acres, lying and being in Orange county, Fla. It was executed December 13, 1876, and recorded the same day. The assessment roll was produced in evidence, and on it was found no description like that contained in the deed. There was, however, this entry, which plaintiff in error claimed was intended as a description of the lands found in the deed, to-wit:

Owner. Des. of Land. Sec. Town. Range. Acres. Am't.

Mazell, Partin & Partin Alexander  -  -    7,800  $18 22

Spring Creek

Grant

Defendant relied on section 63, c. 1976, Laws 1874, p. 27, (which is the same as section 20, c. 1877, Laws 1872,) as follows:

'No suit or proceeding shall be commenced by a former owner or claimant, his heirs or assigns, or his or their legal representatives, to set aside any deed made in pursuance of any sale of lands for taxes, or against the grantee in such deed, his heirs or assigns or legal representatives, to recover the possession of said lands, unless such suit or proceedings be commenced within one year after the recording of such deed in the county where the lands lie, except upon the grounds that the said lands were not subject to taxation, or that the taxes were paid or tendered, together with the expenses chargeable thereon, before sale, and the recording of such deed shall be deemed such assertion of title or such entry into possession by the grantee, his heirs or assigns, as to authorize such suit or proceedings against him or them as for an actual entry.'

J. C. Drew, A. H. Garland, and H. J. May, for plaintiff in error.

J. C. Coopel and H. E. Davis, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing languag, delivered the opinion of the court.