In our original opinion we held that "the separate sale and issue of a separate tax sale certificate in the name of the district, separate and apart from other state *Page 822 and county taxes, was not authorized by statute." Appellees contend that this statement is erroneous; that the provision in Section 2790 C. G. L. to the effect that the drainage district assessments "shall be collected by the tax collector in like manner as other taxes are collected," and shall be assessed "in the same manner as other taxes are assessed," was only meant to adopt the procedure provided by law for the sale of state and county taxes as a pattern, and did not mean that that procedure should be followed in every detail. In this connection our attention has been called to the comparatively recent case of State ex rel. Campbell v. Sloan, 135 Fla. 179, 184 So. 781. That case involved a tax certificate for delinquent drainage taxes due to Peace Creek Drainage District, a corporation organized and existing under the provisions of Chapter 6458, Acts of 1913, being Sections 1451-1507 C. G. L.
The statute we are here dealing with is Chapter 6457 of the Acts of 1913, Sections 2785, et seq., C. G. L. The statute construed in the case of State ex rel. Campbell, supra, was different in some respects from the statute we are here considering inasmuch as said Chapter 6458 set up a system of drainage districts, each district to be a corporation, the officers of which were required to make their assessment and set them up in separate tax books, which were to be delivered to the tax collectors and it was made the duty of the tax collectors to demand and collect such taxes in the same manner and at the same time that he demanded and collected state and county taxes due on the same lands. The relator in that case had requested the clerk of the circuit court in writing, under the provisions of Chapter 18296, known as the Murphy law, to advertise a certain tax certificate for sale pursuant to said Chapter 18296. The respondent clerk did offer for sale, subject *Page 823 however to the payment in full of the drainage district tax, said certificates. The relator was the highest and best bidder at the sale but refused to pay the clerk the said drainage tax included in said certificate, in full, and the clerk refused to deliver to him the said certificate. The relator then brought action of mandamus against the clerk. It was admitted in that case that said Chapter 6458, under which the district was formed, required the tax collector to collect the drainage taxes levied and assessed under the Act "in the same manner and at the same time as state and county taxes are collected," that he shall pay the same to the treasurer of the district. See also Sections 4 and 5 of Chapter 13721, Acts of 1929. In said case of State ex rel. Campbell v. Sloan, supra, this Court, speaking through Mr. Justice BUFORD, said that:
"Chapter 18296, Acts of 1937, applies only to tax sale certificates for delinquent State and County taxes and the provisions of that Act do not apply to drainage district taxes, regardless of the mechanics by which drainage district taxes are levied and assessed and, therefore, the provisions of Chapter 13721, Acts of 1929, are not effective to make the drainage district tax a part of the State and County tax."
It was also held in that case that said drainage district statute as amended, the provisions of which are above mentioned, "did not authorize the tax collector to include the drainage district tax in a tax sale certificate embracing State and County taxes, and the inclusion of state and county taxes and drainage district taxes in one tax sale certificate could not affect either the rights of the drainage district or of the state and county." Continuing, the opinion in that case further says:
The provisions of the last paragraph above quoted from *Page 824 Chapter 13721, supra, are sufficient to require that tax sales for delinquent drainage district tax may be held and conducted by the several officers named, in the same manner and at the same time that tax sales are made and conducted for the delinquent State and County taxes, but this does not mean that they should all be included in one and the same transaction and the lien arising from the sale evidenced by one and the same tax sale certificate. Under these provisions, there should have been a separate sale for the delinquent county and state taxes and another for delinquent drainage district tax and separate certificates should have been issued evidencing the lien arising from each of such levies and sales, respectively. That this was not done will not vitiate the sale nor will it destroy the lien created by operation of law on the lands assessed for either of such purposes. Each of the liens is made by law of equal dignity."
The Goulds Drainage District lies wholly within Dade County. The State as such has no interest in it. All of the taxes it collects go into "a special fund for the cancellation or redemption of the indebtedness incurred in the construction of such drain or auxiliary as aforesaid." Section 2811 C. G. L.
While the statutes construed are in some respects different, we now hold, in line with the principles laid down in the case of State ex rel. Campbell v. Sloan, that the separate sale and the issuance of a separate tax sale certificate in the name of the Goulds Drainage District, separate and apart from State and County taxes, would not and did not affect the validity of such certificate or the lien for taxes represented thereby. In that respect we recede from our previous opinion in this case.
On rehearing, appellees further contend that there is *Page 825 statutory authority for the Clerk of the Circuit Court of Dade County to issue tax deeds based upon tax certificates issued for payment of Goulds Drainage District taxes. We held in our original opinion that "no special provision is made with reference to tax deeds issued for the non-payment of drainage district taxes, so there is no statutory authority for the issuance of such a tax deed as we are dealing with here which is issued in the name and for and on behalf of the Commissioners of Goulds Drainage District and signed by the clerk. As above shown, the statute does not provide for commissioners of such a district, and the chancellor finds that there were no commissioners."
In this connection, appellees insist that Section 2818 C. G. L. does imply that the clerk of the Circuit Court may issue such a deed. That section provides for the levy of taxes by the county commissioners for the purpose of paying the costs of maintaining and repairing "any such ditch, drain or canal and auxiliary thereto," and that the expense ofmaintenance shall be borne by said lands in the same relative proportion as the original expense of constructing said drain, and concludes as follows:
"And the tax so imposed shall be levied and assessed by the same officers at the same time and in the same manner as other taxes are assessed, and shall be collected by the county tax collector as other taxes are collected, and in case of default in the payment of such tax the same penalty shall obtain and the lands may be sold and conveyed in the same way that lands are sold and conveyed for the collection of other taxes, and the money so collected shall be preserved in a separate fund for the maintenance of the ditch, drain or canal for the original construction of which such lands were assessed. (Id., Sec. 4.)"
Unfortunately, this section merely deals with taxes imposed *Page 826 to pay for maintenance and repairs, but appellees contend that by implication it should be extended to cover the assessment for the cost of the original construction; that unless land could be sold and conveyed for non-payment of taxes there would be no force to the statutes and no means of enforcing payment. We wish that we could concur in this view. In behalf of it much has been said by counsel for appellees in their able brief, wherein, among other things, it is said that in the various districts of the State organized under this statute, it has been generally deemed sufficient for the clerk to issue tax deeds, and that while it would seem to be more agreeable with the statutes that such tax deeds should be issued by the clerk for and on behalf of the district, its mere issuance as in this case for and on behalf of "Commissioners of Goulds Drainage District" is immaterial, being the same in effect and meaning as if it had been issued for and on behalf of Goulds Drainage District; that the words, "Commissioners of" might be regarded as mere surplusage, it being beyond question that the deed was issued for the benefit of the district and for and on its behalf. Counsel also contend that the undisputed evidence shows that the bond trustees who acted for the district are generally referred to in Dade County as "Commissioners" and that the terms "Trustees" and "Commissioners" are interchangeably used, although strictly according to the statute they were mere bond trustees. It is further argued that as the statutes do not provide for any body or authority to issue tax deeds or provide for any one on whose behalf such deeds should be issued, this Court should imply that it was the intention of the Legislature that a valid tax deed could be issued by the clerk for and on behalf of the district, especially in view of the language above quoted from Section 2818 C. G. L.; that it cannot be said that the former owner of the lands or any one *Page 827 has been misled or harmed by the manner in which the deed was issued; that the deed was properly signed by the clerk of the Circuit Court under his official seal and recited that it was based upon a certain certificate and contained everything else that all tax deeds contain in form, substance and execution and that therefore the matters complained of cannot be considered as anything but formal or technical in their nature, which objections come to naught when considered in the light of Chapter 14572, Acts of 1929, which was then in effect. It is further argued that all the steps leading to the issuance of the tax deed in question, as well as its actual issuance, were the same procedure which had been followed since the inception of the district, and that if there is no statutory authority saying in whose name or on whose behalf such deeds should be issued, thus rendering them void and ineffectual, then payment of such district taxes cannot be enforced, and the outstanding bonds become ineffectual and the district is rendered impotent.
We realize the force of all these objections, but it is beyond the power of this Court to supply statutory authority for the issuance of a tax deed, such as the one here in question, when we cannot find such authority in the statutes themselves. This, however, does not impair the lien which the district has for these unpaid taxes, nor the right of such district or the assignees of the tax certificate to enforce such liens by foreclosure proceedings in equity.
We must reluctantly conclude, therefore, as was stated in our former opinion, that the only theory upon which this tax deed can be upheld as being merely voidable and not void would be to apply to this case the provisions of Section 1 of Chapter 14572, Acts of 1929. In our former opinion we held that this could not be done because Chapter 14572 was applicable to only state and county taxes, and was not applicable to municipal or district taxes. *Page 828
It is true that the first clause of the title of Chapter 14572 is broad enough, if the title had stopped there, to apply to all forms of taxation. It begins with these words: "An Act Relating to and Concerning Taxation." Also the language of Section 1 of the Act, standing alone, is broad enough to cover drainage district taxes. It begins with the language: "All taxes imposed pursuant to the Constitution and laws of this State shall be a first lien superior to all other liens on any property against which such taxes have been assessed which shall continue in full force and effect until discharged by payment, and no act of omission or commission on the part of any tax assessor, or any assistant tax assessor, or any tax collector, or any board of county commissioners, or any clerk of the Circuit Court or any other officer of this State, or any newspaper in which any advertisement of sale may be published, shall operate to defeat the payment of said taxes;" etc. And said section winds up with these words: "And no assessment, and no sale or conveyance of real or personal property for non-payment of taxes, shall be held invalid except upon proof that the property was not subject to taxation, or that the taxes had been paid previously to sale, or that the property had been redeemed prior to the execution and delivery of deed based upon certificate issued for non-payment of taxes."
While it is true that in Lee v. Walter-Keogh, Inc., 105 Fla. 199, 141 So. 131, we held that municipal tax sale certificates could be foreclosed in the same suit along with state and county tax certificates under Chapter 14572, and while we held in Southwest Enterprises, Inc., v. Frasse, 113 Fla. 770,152 So. 175, that a holder of City of Coral Gables tax certificates could foreclose the same under Chapter 14572 because that chapter was in effect adopted *Page 829 by a provision in the city charter, in both cases this Court recognized the authority of the case of State ex rel. Dofnos Corporation v. Lehman, 100 Fla. 1401, 131 So. 333, in which latter case it was held by this Court that the title and text of both Chapter 10040, Acts of 1925, and Chapter 14572, Acts of 1929, which supersedes Chapter 10040, "show conclusively that they apply only to State and County taxes and have no relation whatever to municipal taxes or certificates." It might be observed that Section 16 of the Act, dealing with the validation of tax sale certificates and deeds which were invalid on account of any matter or thing not affecting the authority "of the State or any County thereof" to levy and collect taxes evidenced thereby, clearly indicates, at least insofar as that Section is concerned that it applies only to State and County tax matters.
It is true that in Overstreet v. Gordon, 121 Fla. 180,163 So. 477, it was stated in the opinion of this Court that: "The policy of Chapter 14572, particularly Section 1 thereof, was to abolish purely formal defenses against the validity of tax deeds, whether issued pursuant to administrative proceedings or not. The statute applies to all cases of tax deeds when judicially attacked in any case wherein it is made to appear that a valid tax deed could have been lawfully issued," etc. But that case apparently dealt with a tax deed based on State and County taxes, and did not attempt to overrule the Dofnos case. Indeed the case of State ex rel. Dofnos Corporation v. Lehman, supra, has never been overruled and in that case, as we have seen, the Court held that the title and text of Chapter 14572 shows conclusively that they apply only to state and county taxes, and this holding has been approved in a number of subsequent cases.
We must hold therefore as we did in our original opinion *Page 830 that Chapter 14572 has no application to a tax deed based upon drainage district taxes, such as we are now considering. Whilethe lien for taxes on the land involved in this case, as evidenced by the tax sale certificate of July 7, 1930, based on the drainage tax for 1929, in the sum of $184.82, as well as any other unpaid taxes due the district, continued to exist, the tax deed itself, which was issued on June 27, 1933, for the reasons hereinabove set forth, we must hold to be invalid. Holferty, on April 28, 1930, paid to the bond trustees $818.38 for this certificate, which he took in the name of W.R. Boose, and the tax deed was issued on June 27, 1933, to Boose, in consideration for the payment of $1,015.54, and about six months later on December 15, 1933, Boose conveyed the property described in the tax deed to Holferty for $1,034.62, purporting to represent the actual amount of money which had been invested by Boose in the property. The tax deed to Boose recited that the applicant had surrendered the tax certificate, based on non-payment of 1929 taxes, and had redeemed or purchased and surrendered all other outstanding subsequent tax certificates and that the recited consideration of $1,015.54 was paid "upon the certificates, and for costs and charges." Holferty then spent some $1,200.00 in clearing and improving the land and subsequently sold the property to appellees Thompson and Taintor for $4,200.00, $2,900.00 of which had been paid at the time of the hearing below, and the balance secured by a mortgage given by said purchasers to Holferty. It appears that Thompson and Taintor were bona fide purchasers for value of the property in question. They further improved the property and at the time of the hearing it was found by the master to be worth from ten to fifteen thousand dollars. When the land was sold for drainage district taxes in 1930 and when the deed was issued it was still wild, unoccupied and uncultivated *Page 831 land, and at the time Boose bought the tax certificate the evidence showed that the property was worth around fifteen hundred dollars.
On this rehearing counsel for appellees propound the following question: "In the event of the cancellation of a tax deed embracing property which has been held under it and improved and a rental value developed by the tax deed purchaser, to what extent is the former owner required to pay for betterments and do justice as a prerequisite to have cancellation?"
In our former opinion we held that the appellant, Mrs. Henderson, was entitled to a decree cancelling the tax deed, which would render the deed to Taintor and Thompson ineffectual as a conveyance of title. We also held that "under all the circumstances disclosed by the record, it appears that certain of the defendants have made permanent improvements or betterments to the land at their own expense, which has increased its value, for which they are entitled to reimbursement, or to be credited therefor as against the rentals collected by them, and that certain of the defendants have paid taxes for which they are likewise entitled for reimbursement or credit, as the facts and the law may require. These equities may be dealt with and worked out in further proceedings and decree in the trial court. It may be that some further testimony will have to be taken."
Counsel for appellees say that this language indicates that the Court was under the impression that the holders of the tax deed had collected rentals from third parties for which appellant may be entitled to an accounting, whereas appellees contend that since the undisputed testimony in the record shows that the land was wild and not fit for cultivation at the time the tax deed issued and was then without rental value, that no accounting would be due appellant for rental *Page 832 values created by the appellees. Upon further consideration of this rehearing, we are of the opinion that this contention is well founded.
Furthermore, it is argued that the chancellor would be without authority to require that equity be done by the appellant, upon the basis of our former decision. That he would be without authority to require any one to reimburse appellees Thompson and Taintor for the amount they paid for the land and would likewise be without authority to require appellant to pay anything for the greatly increased value resulting from the labor and industry and funds of the appellees, all of which appellant would receive without consideration and for which appellees would be without remedy.
Except for certain facts referred to in our former opinion, regarding the relations between appellee Holferty and the Henderson estate, this case would probably have fallen within the operative effect of the principle enunciated in Fla. Inv. Co. v. Williams, 98 Fla. 1258, 116 So. 642, wherein this Court, speaking through Mr. Justice TERRELL, said:
"An equitable estoppel as affecting land titles is a doctrine by which a party is prevented from setting up his legal title because he has through his acts, words or silence led another to take a position in which the assertion of the legal title would be contrary to equity and good conscience. Terrell v. Weymouth, 32 Fla. 255, 13 So. 429; Hagen v. Ellis, 29 Fla. 116,58 So. 721; Thomas v. Goodbread, 78 Fla. 297, 82 So. 835."
But the decree of the trial court was not based on this principle, which is not referred to in the chancellor's opinion, and the facts as found by the master, based on the testimony, did not, in our opinion, bring this case within *Page 833 the decision in the Williams case, supra, as contended for by appellees.
The evidence tends to show that some $1,200.00 was expended by Holferty in clearing and ditching the land after the tax deed issued, thus rendering it fit for cultivation. Certainly it would not appear to accord with the principles of equity to require the purchasers who have created a value by improvements and betterments to account to the former or real owner for a new rental value created by them. Thus Mrs. Henderson as Trustee would not be entitled to rentals except those based upon the rental value of the property which existed at the time the tax deed issued.
The appellant, Mrs. Henderson, as trustee, having come into a court of equity, must do equity, and we hold that as a condition precedent to obtaining a cancellation of the tax deed she should under the circumstances of this case be required by the trial court to first pay into the registry of the court a sum sufficient to reimburse these appellees for the improvements and betterments made by them to the land at their expense, to the extent that such improvements and betterments have added to the value of the land over what that value was at the time the tax deed issued, and also sufficient to reimburse appellees for any and all taxes which they have paid upon the lands, including the taxes and any lawful costs and charges represented by the district tax sale certificate or certificates upon which the deed was attempted to be issued, together with interest thereon. But as to any such increased value, based on the improvements made by Holferty, as well as the taxes paid by him in such amount as may be determined by the trial court, it should be decreed that the same be paid over to appellees Thompson and Taintor, Holferty's grantees, by way of reimbursement *Page 834 to them pro tanto of the amount ($2,900.00) paid by them to Holferty on the purchase price of the land.
As hereinabove modified, our original opinion and decision is adhered to on rehearing, and the decree appealed from is therefore reversed and remanded for further proceedings consistent with our original opinion as modified and changed by this opinion on rehearing.
WHITFIELD, P. J., and CHAPMAN, J., concur.
TERRELL, C. J., concurs in opinion and judgment.
Justices BUFORD and THOMAS not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.