Opinion
April 22, 1952.
Appeal from the Circuit Court, Volusia County, H.B. Frederick, J.
Hawkins Orfinger, Daytona Beach, for appellant.
John T. Wigginton and Caldwell, Parker, Foster Wigginton, all of Tallahassee, for appellees.
The appellant sued in chancery to quiet title to Block K of Ormond Shores and deraigned his title from a special master in chancery, the transfer to plaintiff having been by quit claim deed executed 22 May 1945 by one John C. Sawyer, devisee of Bertha C. Sawyer, and recorded 12 June 1945.
Giovanni Romano is the person primarily interested in this controversy so our references to the appellees will hereafter be in the singular number.
The cloud sought to be removed was created by a special master's deed, conveying Block K to appellee Romano in a suit by him to foreclose tax certificates, although that block was neither involved in the suit nor mentioned in the final decree.
It seems that Romano acquired, 5 June 1939, under the "Murphy Act," chapter 18296, Laws of Florida, Acts of 1937, F.S.A. § 192.35 et seq., a state and county tax certificate for the year 1933 on several pieces of property including the one here involved, and paid all subsequent and omitted taxes on them through the year 1939. In the early part of 1945 he commenced negotiations with the clerk of the circuit court with the view of buying all subsequent and omitted tax certificates on the land from 1939 to date. Finally, 22 March 1945, the clerk advised him of the amount necessary to redeem outstanding certificates and pay taxes due; and upon learning the amount, Romano gave the clerk a check to cover it. These certificates, however, were not assigned to Romano. Thereafter, he purchased and received assignment of all outstanding tax certificates issued by the City of Ormond against the property.
The appellee then employed an attorney to foreclose the tax certificates, and this suit was begun 28 March 1945. Two days later he first learned from the clerk of the circuit court that on 26 February 1945 the appellant had been permitted to redeem the state and county tax certificates against Block K, had been assigned the certificates for the years 1940 to 1944, had applied for a tax deed, and that the tax deed was to issue 2 April 1945. At this time, appellee insists, appellant had no interest in the land as owner, grantee, or as legal representative of an owner, lienor, or mortgagee.
The appellee immediately sued the clerk and obtained, 2 April 1945, without notice, a temporary injunction against the issuance of the tax deed.
Despite the fact that the appellee learned of the appellant's activities at the very beginning of the foreclosure suit, Block K seems not to have been incorporated in the bill with the other properties affected. In any event it was not described in the lis pendens or final decree. It was admitted in the counterclaim in the instant case "* * * that, though, these tax sale certificates also covered Block K, Ormond Shores, the property herein involved, no mention thereof was made in the * * * Lis Pendens or in the final decree entered in [the] cause * * * though the said Block K * * * was included in the deed of the Special Master * * *."
It will have been seen that the appellant's deed was executed and recorded while the foreclosure suit of Romano was in progress.
For some reason that is not presently clear to us Block K was ignored in the final decree, and, of course, as to that tract, there was no adjudication whatever. It is suggested that this resulted from inadvertence, negligence, or oversight of the attorney who represented Romano in the foreclosure suit, but who does not appear as counsel in this litigation. As we shall soon elaborate, we are really more concerned with the effect of the omission than the speculative reason for it.
Out of fairness in presenting the facts of the controversy we should not overlook those equitable considerations which so greatly influenced the chancellor. The appellee claims to have taken possession of the block and to have paid state and county taxes for 1945 and "subsequent thereto," as well as for the years 1932 to 1939; also to have paid city taxes for 1933 and subsequent years. He also insists that the clerk prevented his redeeming the certificates appellant holds and that the money he paid for that purpose is still withheld from him.
Appellee prayed the court to decide that the appellant held Block K as trustee for him.
The parties agreed that Mr. John S. Byington be appointed special master to hear the case and make findings of law and fact, and he proceeded to hear and consider the evidence from which he concluded that appellant should prevail. He thought the quit claim deed of 22 May 1945 gave appellant the right to redeem outstanding tax liens and that the right was exercised 6 July 1945, twenty days before the entry of the foreclosure decree, by paying the clerk the required amount. He thought that inasmuch as Block K was neither mentioned in the lis pendens, nor directed to be sold in the final decree, its inclusion in the master's deed amounted to "nothing more than a misprision or typographical error."
When the report reached the chancellor he sustained exceptions to it and ruled contrariwise. It seems fitting to give his reasons. He thought the equities in the case so strongly commended themselves to a court of conscience that appellee should prevail. The special master, he thought, had not fully considered the bona fides of Romano's position. He seemed to have held the view that appellee-Romano's counsel in the foreclosure matter had somehow been neglectful for he referred to the client's reliance on counsel's guidance and remarked that courts would not ordinarily "relieve a party against the fault or negligence of his attorney, unless it is an extreme case where a clear failure of justice would otherwise result" and concluded that "equity and justice" demanded "that the shortcomings of counsel should not be visited upon the innocent clients [appellee-Romano] in this instance."
We emphasize selection of the master by counsel who stipulated that he be empowered to make findings of law and fact. The court honored the stipulation by formal order. We need not elaborate on the weight that should be given his findings for we have already done that in Harmon v. Harmon, Fla., 40 So.2d 209, and Florida National Bank Trust Co. of Miami v. Brown, Fla., 47 So.2d 748. In few words, the report of the master came to the chancellor bearing the dignity of a verdict of a jury, not to be disturbed unless shown to be clearly erroneous.
It appears that appellant became the owner of the legal title, 22 May 1945, by virtue of the quit claim deed. June Sand Co. v. Devon Corp., 156 Fla. 519, 23 So.2d 621, Rabinowitz v. Houk, 100 Fla. 44, 129 So. 501. See Sec. 695.01, Florida Statutes 1941, and F.S.A. Such Tax certificates as he held at the time merged with the legal title. Such as he did not hold he could have, as owner, redeemed within the period fixed by law. Sec. 194.02, Florida Statutes 1941, and F.S.A. See Graham v. Reed, 83 Cal.App. 516, 257 P. 131.
The master's deed in the foreclosure suit conveyed no title whatever to appellee for the obvious reason that there was no basis in the suit for such a transfer. That situation is so manifest as to merit no elaboration.
We are unable to agree that any laxity upon the part of appellee's lawyer, a point we need not and do not decide, can be charged to appellant. He was chosen by appellee, was accountable to him, and was subject to his direction. If any mishandling on the attorney's part disadvantaged appellee it was exclusively his concern, for there is certainly nothing here to indicate that appellant had any part in it. If a choice must be made it would seem more logical that the harm from any supposed "shortcomings" be placed on "innocent clients" rather than on client's innocent adversary.
Even in view of the equities favoring appellee, and they are not wholly lacking, we think a decision depends on the object of the foreclosure suit itself. As the designation implies it was instituted not to secure to appellee the title to the property, but to sell that property so that the proceeds would be used to reimburse appellee. In the decree right of redemption was reserved to the parties. Failing its exercise the land was ordered sold at public sale, the purchase price to be used first to defray costs and pay taxes. The excess over these items was ordered paid to appellee to the amount due him for the taxes he had paid and interest thereon, any residue to abide the final order of the court. The sale was public, and the tract might well have been sold to a stranger to the suit for enough fully to cover the investment of the appellee. There was nothing unusual about the procedure and nothing about it to insure a transfer of title to the plaintiff or to quiet title in him.
We come to the conclusion that the block was unaffected by the foreclosure; that any failure to incorporate it in the suit was appellee's loss, not appellant's; that the master's deed constituted a cloud on appellant's title; that appellee had no title at all; that appellant was entitled to a decree.
The decree is
Reversed with directions to proceed accordingly.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.