Palm Orange Groves, Inc. v. Yelvington , 159 Fla. 462 ( 1947 )

ON REHEARING GRANTED It appears that Volusia County brought foreclosure proceedings for the enforcement of its tax liens as prescribed by Chapter 22079, Acts 1943, Section 194.47, F.S.A. against the East one-third (1/3) of lot 109 of Blake. The proceedings appear to have been regular and the final decree confirmed the property in the county; and the County executed a deed to the Yelvingtons who petitioned the Court for a writ of assistance pursuant to Section 20 of Chapter 22079 (supra) Section 194.54 F.S.A.

The petitioner answered the rule to show cause as to why a writ of possession should not be issued and the Court struck portions of the answer to said rule and thereupon petitioners bring this their petition for a certiorari.

The stricken portions of the answer to the rule were mostly in nature of evidence, conclusions or argument. The chancellor did not err even though it would have been harmless to have let the entire answer to the rule nisi to stand. The respondent to the rule was only called on to show cause why a writ of possession should not issue; and an answer to such a rule may be a good answer even though it fails to set up matters sufficiently to justify the discharge of the rule. The respondent is only called on to do the best it can.

It is apparent that there is to be a controversy as to whether the buyer takes the land purchased from the County according to the true lines or the mistaken lines which controversy it is for the chancellor to decide in the first instance.

It follows that on rehearing our former judgment and opinion is overruled and withdrawn and the application for certiorari is denied.

THOMAS, C. J., concurs specially.

TERRELL and CHAPMAN, JJ., and WILLIAMS, Associate Justice, concur.