CHARLES E. MOORMAN AND EARLINE B. MOORMAN, HIS WIFE, APPELLANTS,
v.
WILLIAM T. THOMAS, OLIVE R. THOMAS AND WILLIAM T. THOMAS, JR., APPELLEES
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Appellants Moorman challenge a summary decree quieting title to land in the appellees' favor, raising two issues: the validity of a 1945 tax deed and whether appellees proved adverse possession. The court reversed, finding the tax deed void under the Soldiers' and Sailors' Civil Relief Act and holding that adverse possession claims require trial, not summary disposition.
The tax deed was void because the Soldiers' and Sailors' Civil Relief Act tolled the redemption period while Moorman was in military service, making the issuance of the tax deed premature. The adverse possession claim could not be resolved on summary judgment because the appellees filed no proof in support of their adverse possession allegations, making summary disposition inappropriate.
“the tax deed was prematurely issued and therefore void upon the authority of LeMaistre v. Leffers”
Establishes that under the Soldiers' and Sailors' Civil Relief Act, the tax deed was void because it was issued before the redemption period had expired, as time was tolled during military service.
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Join FLexlaw to unlock all legal intelligenceA tax certificate was issued in August 1937. Moorman entered military service in October 1942 and completed his purchase of the land in December 1942.…
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Appellant Moorman appeals from a summary final decree quieting the title to certain lands in the appellees. Two questions are presented, viz.: (1) The validity of a tax deed issued in 1945; and (2) The sufficiency of proof of adverse possession by appellees.
We will first consider the tax deed. A tax certificate was issued August 2, 1937 describing the land in controversy. In October of 1942, Moorman entered the armed services and in December of the same year he completed purchase of the land at which time same was conveyed to him. On June 4, 1945, while Moorman was in the armed services, a tax deed based upon the 1937 tax certificate was issued to appellees’ predecessor in title. The chancellor held that the tax deed “ * * * is hereby declared to be a good and sufficient tax deed.”
I As to the validity of the tax deed, appellant contends that the Soldiers’ and Sailors’ Civil Relief Act tolled the running of time allowed him by Florida law for the redemption of his property so long as he was in the military service. He then reasons that since the period for redemption was tolled, the issuance of the tax deed was premature and therefore void.
In Headley v. Moorman, 192 So.2d 30, this court in reviewing the same factual situation concluded by reason of the Soldiers’ and Sailors’ Civil Relief Act that the tax deed was prematurely issued and therefore void upon the authority of LeMaistre v. Leffers, 333 U.S. 1, 68 S.Ct. 371, 92 L.Ed. 429 (1947), Burke v. O’Brien, 47 So.2d 777 (Fla.1950) and Mirabella v. Kickliter, 113 So.2d 397 (Fla.App.2d, 1959). The same conclusion is reached in the instant cause.
The chancellor found in his summary final decree that “ * * * the possession and occupation of plaintiffs and their predecessors in title is now and at all time heretofore has been exclusive, open, notorious, adverse, unbroken, uninterrupted and. *321hostile to the whole world since the 4th day of June, A.D. 1945, * * * ” From the record before us, we are unable to understand how the chancellor reached such a conclusion. Appellees-plaintiffs filed their verified petition alleging sundry facts to establish a claim of adverse possession. Appellant-defendant in his answer denied the material allegations. No proof was adduced by plaintiffs in support of their pleas pertaining to adverse possession. Issue was joined as to this question, and it was error to dispose of same in a summary proceeding. Therefore, the cause is reversed for further proceedings.
Reversed.
JOHNSON and SACK, JJ. concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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King v. Zagorski, 207 So. 2d 61 (Fla. 2d DCA 1968)…ater applied it in Mirabella v. Kickliter, Fla.App.1959, 113 So. 2d 397, holding there that the tax deed under similar circumstances was invalid. Recently the Florida Supreme Court, reversing the 1st District Court, Moorman v. Thomas, Fla.App.1966, 192 So. 2d 320, and overruling Burke expressly and Mirabella impliedly, held in Thomas v. Moorman, Fla.1967, 199 So. 2d 719, that a tax deed was voidable, not void, under comparable circumstances. But while the Florida cases have been running somewhat a treadmill,…
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Thomas v. Moorman, 199 So. 2d 719 (Fla. 1967)…ERVIN, Justice. We review through conflict-certiorari the decision of the District Court of Appeal, First District, in Moorman v. Thomas, 192 So. 2d 320. It appears from the opinion of the District Court that Respondent Charles E. Moorman entered the armed services in October, 1942. In December of that year he completed purchase of the land in controversy. On June 4, 1945, while Moorman was in the…
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Headley v. Moorman, 201 So. 2d 446 (Fla. 1967)…s presented, and decision are clearly set forth in the decision of the District Court reported in Headley v. Moorman, 192 So. 2d 30, and it would serve no useful purpose to repeat them here. The same question of law was present in Moorman v. Thomas, 192 So. 2d 320, District Court of Appeal, First District, and with the same result. The latter case was reviewed by this court and quashed in the case of Thomas v. Moorman, 199 So. 2d 719, opinion filed June 7, 1967. In the case sub judice we have issued the writ,…
Authorities Cited
- Le Maistre v. Leffers, 333 U.S. 1 (U.S. 1948)
- Mirabella v. Kickliter, 113 So. 2d 397 (Fla. 2d DCA 1959)
- Burke v. O'Brien, 47 So. 2d 777 (Fla. 1950)
- Headley v. Moorman, 192 So. 2d 30 (Fla. 1st DCA 1966)