This case is before us on rehearing granted after the opinion was filed herein on July 14, 1933. In the original opinion we inadvertently said: "The decree must be reversed because of the error which is apparent caused by the failure of the bill of complaint to show that the complainant had paid the due and unpaid taxes assessed for the year 1931." This statement is at variance with the remainder of the opinion and should not have been included therein. We held in that opinion that, "The payment of all subsequent taxes, however, is not a condition precedent to the right to foreclose a tax certificate *Page 238 lien except in cases within the purview of Chapter 14572,supra." The chapter referred to was of the Acts of 1929.
After further consideration of the question as to whether or not the practically universal rule applicable to tax sale certificates, "The last shall be first and the first shall be last," obtains in Florida we are convinced that the sounder reasoning must support the conclusion that such rule does obtain in this State and that there is nothing in our Constitution, statutes or previous opinions of this Court, which requires us to adopt a different rule.
This question was not presented in the case of the City of Sanford v. Dyal, supra, and we did not hold in that case that a different rule of priority of liens is to be applied to certificates. We did hold in that opinion, as stated in the former opinion in this case, that "In the distribution of the proceeds of a State tax lien foreclosure sale of lands in a municipality, when the municipal liens are adjudicated, all amounts due on State, county and municipal tax liens when they are of equal dignity, should be paid ratably, if the funds are insufficient to pay all such tax liens. If there be a surplus after paying all the State, county and municipal tax liens, the municipal special assessments should be paid ratably if the funds are not sufficient to pay all, unless otherwise provided by law or by proper decree."
This language is not equivalent to holding that a lien created by a sale and evidenced by a certificate for a certain year is of equal dignity to a lien created by a sale and evidenced by a certificate of a later year. A proper construction of the holding in that case is that liens created by a sale and evidenced by a certificate for the non-payment of municipal taxes of a certain year are of equal dignity to a lien created by a sale and evidenced by a certificate for the non-payment of county and State taxes for the same year. *Page 239
Some of the courts have held that, "in the absence of a statute to the contrary, a tax deed regularly issued cuts off delinquent taxes for years previous to that in which the deed is dated." We cannot go far because of the provisions of Section 894, R. G. S., which was Section 1 of Chapter 10040, Acts of 1925, which provides in part:
"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."
In view of this language, I think we could not hold that the lien is completely wiped out by the issuance of a subsequent tax certificate based on a valid sale.
The appellate courts of the States of this Nation have so universally held that the later tax certificate regularly issued creates a lien entitling the holder to priority of payment that it is unnecessary to cite the various authorities. It has been so held in the cases cited in the original opinion and also by the courts of Michigan, Wisconsin, California, Pennsylvania, Minnesota, New Jersey, North Dakota and Ohio.
While under our statutes we, as above stated, cannot hold that the lien created by the prior sale and issuance of certificate is completely wiped out by a subsequent sale and issuance of certificate, the lien of the prior sale and issuance of certificate is relegated to a position and dignity inferior to the lien of the subsequent sale and certificate. The prior lien I think is entitled to be considered in the foreclosure of the subsequent lien and if the fund realized under the foreclosure is sufficient to pay the amount of the subsequent lien then the excess may be applied to the older lien. *Page 240
We have heretofore, in the case of City of Sanford v. Dyal,104 Fla. 1, 142 So. 233, held:
"In foreclosing State tax liens upon lands within a municipality, all past due and unpaid State, county and municipal tax liens and municipal special assessment liens against the property should be adjudicated and the proceeds of the foreclosure sale should be applied first to all liens for past due and unpaid taxes, including those held by the municipality or its assignees, if any, as well as those held by the State or its assignees; second to the past due special assessments; and then to the parties having an interest in the land as may be required by law and appropriate decree."
"The statements in the original opinion herein, 142 So. 233, that unpaid taxes and assessments remain liens upon lands until paid where the lands are sold in tax foreclosure proceedings for less than all past-due taxes and assessments should be confined to liens for taxes and assessments that become due subsequent to the decree of sale and to such lien for past due taxes and special assessments as have not been duly adjudicated and extinguished."
And we also said, in the same opinion:
"When a municipality having tax and special assessment liens is made a party to a suit in equity to foreclose State and county tax liens, all the municipal liens may be appropriately adjudicated in the suit. Where a municipality is made a party to the foreclosure of the lien of a State and county tax certificate, and the municipal liens are adjudicated, such liens are extinguished or transferred to the proceeds of the foreclosure sale by virtue of the judicial proceeding and adjudication in equity resulting in a decree and sale of the land under the various liens; and such judicial extinguishment or transfer of the liens as a result of *Page 241 statutory proprieties enforced in equity when the land does not sell for enough to pay all adjudicated liens, constitutes a payment and discharge of the liens within the contemplation of the statutory provision that such liens shall continue until paid. See Van Huffel v. Harkelrode, 248 U.S. 225,52 Sup. Ct. 115, 76 Law Ed. 256, Dec. 7, 1931. When the liens were created the statute authorized them to be enforced in equity. Sections 5034, 896, 2955, 2977, C. G. L., 1927. The powers and functions of courts of equity are recognized by the Constitution and laws of this State. Sections 5, 11, 12, Art. V, Constitution; Sections 5034, 896, 1020, 4919, 5004, C. G. L., 1927.
"In the distribution of the proceeds of a State tax lien foreclosure sale of lands in a municipality, when the municipal liens are adjudicated, all amounts due on State, county and municipal tax liens when they are of equal dignity, should be paid ratably, if the funds are insufficient to pay all such tax liens. If there be a surplus after paying all the State, county and municipal tax liens, the municipal special assessments should be paid ratably if the funds are not sufficient to pay all, unless otherwise provided by law or by proper decree."
Thereby, we adopted the law as enunciated by the Supreme Court of the United States in Van Huffel v. Harkelrode,52 Sup. Ct. 137, 76 Law Ed. 256.
The rule which we applied there to the discharge of the lien created by special assessments and the distribution of the fund I think may be and should be for the same reasons applied to the discharge of liens created by prior assessments, sales and issuance of certificates because of default in the payment of general taxes.
The reason for the rule is logical and apparent. The first duty of the State is to collect taxes to maintain its *Page 242 government. Likewise, the first duty of every citizen is to pay the lawfully assessed taxes against his property to support the State. The present need of the State Government is more important than some past need of the Government. Therefore, it is more important that the State collect its current, or nearest to current, tax than it is that it collect some long-past-due tax. If land should have been sold for taxes in 1925 and the certificate purchased by "A" and "A" failed to pay the tax on that land in 1926 for the year 1925, it is due to be sold again and if sold in 1926 and "A" purchases the certificate, which he has the right to do, he keeps his lien created by the certificate in 1925 in good standing; that is, he protects his lien. But, if he allows the tax to go unpaid and allows "B" to purchase the certificate of 1926, it is but fair and just that "B" should thereby procure a fresher and better claim than that which "A" had.
Now, under this state of facts, when "A's" certificate ripens in 1927 he is required under the statute to pay subsequent and omitted taxes. Therefore, he must pay "B" for that certificate which "B" purchased in 1926, together with interest and costs, and he must pay the tax for 1926, if it was omitted or if it has become delinquent.
Should we adopt the rule which was enunciated in the original opinion here and is now adhered to by a majority of the Court, the result will be that after some four or five tax sales of the same land a tax certificate will be of no value whatsoever because the purchaser of such certificate upon the foreclosure will be required to prorate the proceeds of the foreclosure sale ratably between all prior certificate holders and he could not hope to realize the amount invested in his certificate. The law should be so construed as to encourage the purchase of tax sale certificates *Page 243 and thereby to insure the payment of the tax, that the expenses incident to government may be met from the funds derived from the tax.
The unanimity with which our courts have applied this doctrine of priority to tax sale certificates constitutes abundant evidence of the wisdom of the rule.
For the reasons stated, I think the former opinion should be overruled insofar as same is in conflict with what is said here and the judgment should be modified to conform with views herein expressed.