The sale of tax certificates and street assessments was made by the city to the appellants en masse for an amount representing but a small percentage of the total face value of the certificates and the assessments. The lower court held that the commissioners, who at the time served the city, acted in good faith, for what they thought was the best interest of the city and that no fraud was chargeable to them. By per curiam order this Court ruled that in the circumstances reflected in the record and considering the findings of the chancellor his decree should be reversed.
Upon petition for rehearing the Court was of the view that further argument should be heard on the question whether the contract was valid so far as it affected street improvement liens and taxes less than two years old. The case was then reheard.
There seems to have been no authority for the city to include in the sale those taxes which had not become due more than two years before the transaction and it appears also that by former ruling of this court in the case of Marshall v. C. S. Young Construction Company, et al., 94 Fla. 11, 113 So. 565, liens for street assessments were not assignable in circumstances such as are reflected in this record.
It cannot be determined what amount was paid for the liens and what amount was received by the city for the taxes nor is it ascertainable what proportion of the sum paid was intended to cover those taxes more, and those taxes less, than two years old. It seems impracticable to separate these three items and appears that if such discrimination were undertaken on the part of the court it would amount to an attempt *Page 95 to rewrite the contract. Therefore, the decree so far as it cancels the contract is affirmed with directions to provide for refund to the appellant amounts paid under it after deducting amounts received by him from individual taxpayers or lienors subsequent to the execution of the contract, or the reimbursement by him of the amounts received in excess of the sum paid to the city if that proves to be the case.
BROWN, C. J., WHITFIELD, CHAPMAN, and ADAMS, J. J., concur.
TERRELL and BUFFORD, J. J., dissent in part.