Bauman v. Healy , 141 Fla. 478 ( 1939 )

This case is again before us pursuant to rehearing granted and reargument being had.

The factual conditions are fully set out in our opinion filed in this cause on May 30, 1939, and it is, therefore, unnecessary to detail them at this time.

Confusion appears to have occurred in the lower court and in our former disposition of the cause because of the failure to properly distinguish between the status of a tax deed holder and the status of a grantee of a tax deed holder and also because of a lack of appreciation of the fact that Searing was in no way obligated to Healy to pay and discharge the mortgage from Andrews to Healy.

It appears from the record that the mortgage sought to be foreclosed was a mortgage from Andrews, the then holder of the legal title, to Healy, which mortgage was subject to the lien of a prior mortgage from Healy, the then holder of the legal title, to Searing. The mortgage from Healy to Searing was discharged by accord and satisfaction. This made the Andrews mortgage a first mortgage lien, but the lien for taxes was a superior lien to that mortgage. The property covered by the mortgage was sold for non-payment of taxes. The tax certificates were purchased by a stranger. Searing was not liable on the Andrews mortgage to Healy. The purchaser of the tax certificate in due course, and without collusion with any of the parties, procured a tax deed. This created a new and independent title in the grantee in the tax deed. Stuart v. Stephanus, 94 Fla. 1087, 114 So. 767; Dean v. Kane, 106 Fla. 814, 143 So. 656; Cremin v. Quigley, 104 Fla. 133, 139 So. 383.

When the holder of a tax deed conveys the property bona fide to a third person by sufficient deed such third person is not a tax deed holder, but becomes a holder of title deraigned from a new and independent source. See Groover v. Stafford, 107 Fla. 410, 145 So. 252.

It is not contended that Searing ever became the holder of the tax certificate or of the tax deed. The contention is that he became the equitable owner under the deed from the tax deed holder to Mrs. Bauman.

The issuance of the tax deed extinguished all prior mortgage liens, in this case.

A different result might have obtained if Searing had acquired a tax deed while holding the mortgage from Healy. In such case Healy would have probably had the right to redeem. But Searing was not obligated on the mortgage from Andrews to Healy and, therefore, any after-acquired title by Searing did not inure to the benefit of Healy. Therefore, the enunciations in the case of Torreyson v. Dutton (Fla.), 188 So. 805, are not applicable here.

While it is not material to the disposition of this case we think the record shows clearly that Mrs. Bauman was a bona fide purchaser of the title from the tax deed holder and that the tax deed holder was the bona fide holder of a new and independent title superior to and in contravention of all prior mortgage liens.

The record is clear that Searing was not at any time either legal or equitable owner of the tax deed or of any right as a tax deed holder.

So the decree should be reversed with directions that a decree be entered in favor of appellant conforming to the views herein expressed.

So ordered.

Reversed.

TERRELL, C. J., WHITFIELD and BROWN, J.J., concur.

CHAPMAN, J., dissents.

Justice THOMAS not riot participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.

Division A ON SECOND PETITION FOR REHEARING