JOHNSON v. JOHNSON

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Docket Number

No. 4949.

Attorney(S)

Walter O. Bazemore, Punta Gorda, for appellant. William Lamar Rose, Fort Myers, for appellees.

Judges

SHANNON, Acting Chief Judge.

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Smart Summary

Factual and Procedural Background

Appellant Hiram B. Johnson filed a suit to partition real property against appellees Grant J. Johnson and his wife, who counterclaimed with a quiet title action. The property was originally owned by their father, Summer Johnson, who died intestate in 1932 leaving four surviving children, including Hiram and Grant. The four children were established as heirs in a 1933 probate petition. Since then, Grant Johnson and his wife have continuously possessed the property, while the other heirs resided elsewhere. In 1935, Grant obtained and recorded a tax deed to the property, which vested record title solely in him. In 1956, Hiram acquired deeds from the other two co-tenants transferring their interests to him. The partition suit was filed in 1963. The trial court found in favor of the defendants-counterclaimants, quieting title in them free of plaintiff’s claims. Hiram appealed this order.

Legal Issues Presented

Whether a tax deed obtained by one co-tenant vests independent title free from claims of other co-tenants after twenty years under Fla. Stat., Sec. 95.23, F.S.A.
Whether the statute of limitations provision (Sec. 95.23) cures any defect inherent in a tax deed obtained by a co-tenant against other co-tenants.
Whether the appellees acquired title by adverse possession or solely by virtue of the tax deed.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Williams v. Clyatt, 53 Fla. 987, 43 So. 441 (1907)	Tax deed obtained by a co-tenant is voidable and amounts only to payment of taxes, not independent title.	The court recognized this rule but found the trial court erred in treating the tax deed as curable by Sec. 95.23.
Taylor v. Taylor, 97 So.2d 323 (Fla. App. 2d 1957)	Tax deed to a co-tenant is merely payment of taxes and does not enhance rights beyond securing repayment.	Used to reject the notion that a tax deed confers independent title against other co-tenants.
Gates v. Roberts, 85 So.2d 862 (Fla. 1956)	Supports principle that tax deed to co-tenant does not create independent title.	Reinforces the court’s rejection of appellees’ claim to independent title by tax deed.
Spencer v. Spencer, 160 Fla. 749, 36 So.2d 424 (1948)	Similar principle regarding tax deed to co-tenant as merely securing tax payment.	Supports the court’s position on the limited effect of tax deeds among co-tenants.
Andrews v. Andrews, 155 Fla. 654, 21 So.2d 205 (1945)	Consistent with the principle that tax deeds do not create new title among co-tenants.	Further supports the court’s analysis rejecting independent title by tax deed.
Albury v. Gordon, 164 So.2d 549 (Fla. App. 3d 1964)	Sec. 95.23 does not cure defects in a tax deed to a co-tenant; constructive trust arises in favor of other co-tenants.	The court adopted this reasoning to reverse the trial court’s order quieting title in appellees.

Court's Reasoning and Analysis

The court analyzed the nature of a tax deed obtained by a co-tenant and the effect of Fla. Stat., Sec. 95.23, which bars claims after twenty years from a recorded deed. It recognized the established rule that a tax deed by a co-tenant is voidable and amounts only to payment of taxes, not conferring independent title. The trial court erred by holding that the statute cured the inherent defect in the tax deed. The court relied on precedent, particularly the recent Albury v. Gordon decision, which held that the statute does not prevent other co-tenants from asserting equitable interests under a constructive trust. The court concluded that the appellees’ tax deed did not extinguish the interests of the other co-tenants and therefore the quiet title order was erroneous. The court reversed and remanded for further proceedings consistent with this analysis.

Holding and Implications

REVERSED AND REMANDED.

The court reversed the trial court’s order that quieted title in appellees based on their tax deed, holding that such a deed does not confer independent title free of claims by other co-tenants even after twenty years under Sec. 95.23. The case was remanded for further proceedings consistent with this ruling. The decision clarifies that tax deeds obtained by co-tenants do not extinguish equitable interests of other co-tenants and that the statute of limitations provision does not cure defects in such deeds. No new precedent beyond the adoption of Albury v. Gordon was established.

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HIRAM B. JOHNSON, APPELLANT, v. GRANT J. JOHNSON AND EMMA JOHNSON, HIS WIFE, APPELLEES.

SHANNON, Acting Chief Judge.

Appellant Hiram B. Johnson was the plaintiff below in a suit to partition real property. Grant J. Johnson and his wife, the appellees, were the defendants who counterclaimed with a quiet title action. The chancellor found for the defendants-counterclaimants and ordered the fee simple vested in them, free from all claims of the plaintiff. From this order the plaintiff appeals.

The appellant, Hiram Johnson, and the appellee, Grant Johnson, are brothers. The property here in dispute was previously owned by their father, Summer Johnson, who died intestate in 1932 leaving four surviving children, two of whom were Grant and Hiram. A petition for probate filed in 1933 established the four children as heirs to Summer Johnson's property. Since that time the appellee, Grant Johnson, and his wife have been in continuous possession of the litigated property, while the other heirs have established residence elsewhere.

In 1935 Grant Johnson obtained and recorded a tax deed to the litigated property. Thus the title, which formerly had been in the four heirs as co-tenants, was vested by record title in one of the co-tenants by virtue of a tax deed.

In 1956 Hiram Johnson obtained deeds from the other two co-tenants, transferring to him whatever interest they had in the property. This suit for partition was filed in 1963 by Hiram against Grant and his wife who counterclaimed, seeking to have the fee simple to the entire tract quieted in them.

The chancellor found that the defendants had not acquired title by adverse possession, as they had contended, but ruled that the tax deed which had been of record more than twenty years was unassailable. The basis of this ruling was Fla. Stat., Sec. 95.23, F.S.A., which provides as follows:

" Limitations where deed or will of record for twenty years or more. — After the lapse of twenty years from the record of any deed or the probate of any will purporting to convey lands no person shall assert any claim to said lands as against the claimants under such deed or will, or their successors in title.

"After the lapse of twenty years all such deeds or wills shall be deemed valid and effectual for conveying the lands therein described, as against all persons who have not asserted by competent record title an adverse claim."

The lower court's opinion recognized the established rule that where a co-tenant acquires a tax title it amounts merely to the payment of taxes, and the purchaser gains no additional rights in the land except to secure the payment of taxes from the other co-tenants. See Williams v. Clyatt, 1907, 53 Fla. 987, 43 So. 441. However, the chancellor interpreted this rule to mean that such a deed was merely voidable and could be cured by the provisions of Fla.Stats., Sec. 95.23, F.S.A. We hold that this reasoning was erroneous.

In Taylor v. Taylor, Fla.App. 2, 1957, 97 So.2d 323, it was held that the effect of a tax deed to a co-tenant "is simply a payment of taxes by the purchasing co-parcener and his right in the land is not enhanced except to secure the payment of the amount, with interest, thus expended by him for taxes for the other co-parceners." Id. at 324. See Gates v. Roberts, Fla. 1956, 85 So.2d 862; Spencer v. Spencer, 1948, 160 Fla. 749, 36 So.2d 424; and Andrews v. Andrews, 1945, 155 Fla. 654, 21 So.2d 205. The rationale expressed by these Florida cases is inconsistent with according a co-tenant's tax deed the status of an independent title.

In Albury v. Gordon, Fla.App. 3, 1964, 164 So.2d 549, the Third District fully explored the identical question raised here and held that Sec. 95.23 did not cure the defect inherent in a tax deed to a co-parcener, especially when no intervening interests of third parties had arisen. We adopt the views expressed by Judge Carroll in the Albury case, which are as follows:

"In the circumstances presented, the one co-parcener who regained title to the property by the Murphy deed from the state in 1940 acquired it subject to a constructive trust for a half interest in favor of his co-parcener, or the latter's successors in interest.

"The limitation statute relied on by the appellant (§ 95.23, Fla. Stat. F.S.A.) did not operate to prevent the appellees from asserting their equitable rights to the property under the constructive trust after the lapse of 20 years. * *

* * * * * *

"An alternative basis for affirmance is presented by appellees' contention that although the state effectively divested itself of title when it conveyed the property to Albury in 1940, as to the former owners the Murphy deed should not be regarded as a transfer of title but rather a redemption of taxes. We hold, as so contended by appellees, that the Murphy deed to the former owner did not create a new and independent title, because it ran to a former owner whose duty it was to pay the delinquent taxes. * * *" 164 So.2d at 552, 553.

We therefore conclude that the chancellor erred in quieting title in the appellees, whose tax title was ineffective against the other co-parceners. In all fairness to the chancellor, we note that his decree preceded the Albury decision, so he was without the benefit of the reasoning or precedent set forth in that case.

Accordingly, we reverse the order appealed and remand for further proceedings consistent with this opinion.

Reversed and remanded.

SMITH, J., and SMITH, CULVER, Associate Judge, concur.