Wilson Cypress Company v. Del Pozo y Marcos
Suit to quiet title, brought in the circuit court for the southern district of Florida by appellees, whom we shall call throughout complainants and the appellant defendant.

The bill alleges that the complainants are the heirs at law of Miguel Marcos, a lieutenant in the Spanish Army; that he was granted by the lawful authorities of the King of Spain on the 18th of October, 1815, 5,500 acres of land in the then province of East Florida, on two banks of a creek which empties into the St. John's river about 2 miles north of Long Lake; that the grant was confirmed to his widow, Teresa Rodriguez, in her own right and for and on behalf of her children by the United States to the extent of a league square; that the grant was an inchoate right to said tract, under the laws of Spain called a first title or permit to occupy the land, and, after occupancy and proof thereof, to secure a complete or Royal title; but before such title issued Spain ceded East Florida to the United States, who, by the 8th article of the treaty between the United States and Spain [8 Stat. at L. 258], occupied the position of Spain with regard to this and like grants of land, and were pledged to confirm title thereto; that the lands were neither surveyed nor segregated from the public domain during the sovereignty of Spain; that the same were wild and uncultivated, were never in the actual occupancy of the grantee or of his widow and children, and the title thereto at the time of the cession of the Floridas passed to the United States, subject to the equitable claim of the complainants.

The succession of complainants to the original grant is traced by the bill, and it is alleged that soon after the cession of the Floridas to the United States, Teresa Rodriguez applied to the Board of Land Commissioners appointed to examine and report on claims to lands in East Florida for the confirmation of the grant, and it was reported by the board to Congress as a valid grant, and its confirmation recommended. That thereafter Congress, by an act approved May 23d, 1828 (4 Stat. at L. page 284, chap. 70), confirmed it to the extent of a league square, to be located within the limits of the original claim and bounded by sectional lines, and to be in quantities of not less than one section. That under the 6th section of the act of Congress confirmation of the grant was required to be accepted as a final settlement of the claim, of the claim to be brought before the judge of the superior court for the district of East Florida within one year from the passage of the act; that the latter proceeding was not had, and that, by the act of Congress, the title to the land was confirmed to the extent of one league, to be located within the bounds of the original grant.

That it was held by the judicial and executive branches of the government that a league square was 4,438.68 acres. That by the laws then in force in the territory of Florida it was the duty of the surveyor general of the territory to make the survey of the lands confirmed to complainants' ancestor, and make certificate thereof, and file the same in the land office of the United States in said territory. That among the acts of Congress extending to said territory was the act of March 3, 1807 [2 Stat. at L. 445, chap. 46], by the terms of which it was made unlawful to take possession of, survey, or cause to be surveyed or settle upon, any lands ceded or secured to the United States by any treaty with a foreign nation, or any land, claim to which had not been recognized and confirmed by the United States, under a penalty of forfeiture of the right, title, and claim to such lands. That the ancestors of complainants were residing in Cuba on the 23d of May, 1828, and they and their descendants have since that date resided there, and none of them have resided or been in the United States since the passage of the act of May 23, 1828, confirming the grant to the extent of a league square. That the United States never surveyed and segregated the lands as confirmed, as held by the Land Department of the United States, and the confirmees had no power to cause such survey to be made. That the lands embraced in the grant were surveyed as public lands by the United States in 1847, and such survey was approved May 15, 1848. A certified copy of the official plat of survey is attached to the bill, and it is alleged that the lands were held by the Land Department of the United States to be public lands, and were so treated from 1831 to February 12, 1894, upon which date the grant described in the bill was, by the Land Department of the United States, declared to be a valid, confirmed private grant to Teresa Rodriguez, and ordered to be patented, and thereafter it was so patented to her, her heirs, assigns, and legal representatives, and the lands described as section 37, township 19, south of range 28, and section 41, township 19, south of range 29, according to the plat of the public surveys made by the United States, and for the aggregate of 5,486.46 acres. That until such recognition of the title of complainants and those under whom they claim from and after May 23d, 1828, complainants were excluded from the possession of the lands, and the United States had both the legal title and possession and right of possession of them, and any occupancy of them by any other than the United States was a mere trespass; that before February 12, 1894, complainants and those under whom they take title were not able to take possession of the lands because the United States claimed the entire grant as public lands.

The bill then sets out the asserted title of the defendant to have been derived from a sale to one John Starke on the 5th of July, 1852, by the sheriff and ex-officio tax collector of Orange county, Florida, based upon a pretended execution for certain unpaid taxes alleged to have been assessed 'upon the 'lands supposed to belong to Teresa Rodriguez," and the said sheriff attempted to deed to said Starke 'all the right, title, and interest of Teresa Rodriguez and others' in and to said tracts of land. That the said sale and deed are absolutely null and void because (1) it was alleged to be an assessment upon the single tract containing 5,480 acres, and to be payable for the years 1845 to 1851, both inclusive, during which time the legal title and possession were in the United States; that the lands were expressly exempt from taxation by the statute of the state of Florida during those years, which declared that the act for the assessment and collection of taxes should not be construed to embrace lands belonging to the United States. (2) That the amount of taxes assessed was in excess of what could have been lawfully levied. (3) That proper notice of the sale was not given; (4) nor was the land sold in the parcels required. (5) That the deed was not properly executed, it having no subscribing witness and its record being wholly unauthorized.

Like invalidity is asserted against the tax and sale of the land for the years 1867, 1868, and 1869, assessed to John Starke, and conveyed by the sheriff to one William Mills. In addition it is alleged that no statute in Florida authorized a tax collector to make a tax deed upon a sale for the nonpayment of taxes, such being the duty of the county clerk of the county wherein lay the lands. That the assessment and tax sale and deed to William Mills were made in execution of a conspiracy by him and Robert C. Patten and one George C. Powell to deprive complainants of their title; that Mills never took possession of the lands, but attempted to convey them to Powell, that Powell entered only upon section 9 (a part of section 37, above named) of said township 19, range 28, and made some improvements to complainants unknown, and cut some timber thereon. That he exercised no other acts of ownership, and those were continued but for a short time, and 'were not uninterrupted by continued occupancy for seven years,' and were subsequently abandoned by him; that the possession was not sufficient, either in character or duration, to enable him to claim the benefit of the statute of limitations against any action brought by complainants; that complainants were precluded from bringing any action because the lands were held and claimed adversely by the United States, and held to be public lands of the United States. Other tax assessments and sales are alleged and conveyance and title traced through them to the defendant, the Wilson Cypress Company, but the latter has never had such possession as would bar a right of entry by complainants. It is alleged that complainants tried to get a recognition of their title, but only succeeded on June 18, 1894.

There are many other allegations which assert the validity of complainants' title and the invalidity of that of defendant, and that on June 26, 1895, the United States quitclaimed and patented to the legal representatives of Teresa Rodriguez the lands granted to Marcos, and which had been surveyed as section 37, township 19, range 28, and section 41 of the same township, range 29, containing 5,486.46 acres. That the patent was duly recorded in the records of the United States and in the public records of Lake county, Florida, and the grantor of defendant and defendant had knowledge of it when the conveyance was made. That after the issue of the patent complainants were for the first time entitled to the possession of the lands, and from such date they became subject to taxation, and thereafter complainants sent their agent to Florida and took possession of the lands and have continued ever since to claim and have exercised acts or ownership over them.

It is alleged that the tax deeds referred to in the bill are fair upon their faces and are clouds upon the title of complainants, and hinder them in the full enjoyment of their property, and should be canceled and discharged from the public records.

It is further alleged that defendant will aver that no patent was necessary to evidence complainants' title, and that by the confirmation of the grant title vested in the grantee and his legal representatives, but complainants allege that, under the facts set out, the United States did not relinquish title until the 26th of June, 1895, and before the approval of the survey of the lands granted the legal title was in the United States, and the claim of complainants attached to no particular land.

There are other allegations of what the defendant will aver as to possession and right, and it is then alleged that there never has been such possession by defendant as would establish an adverse holding.

An injunction was prayed against the defendant, enjoining it and its officers from exercising acts of ownership over the land, or from disturbing the possession of complainants; that the tax deeds and other deeds set out in the bill be held to have been executed without authority of law, and that they be annulled and canceled.

The answer is as voluminous as the bill. It negatives many of the allegations of the bill, either by denials or opposing allegations, and asserts that the grant from Spain and its confirmation by the United States passed a complete title to the land. It also asserts the validity of the title acquired through the tax deed; alleges the insufficiency of the bill in equity; sets up the statute of limitations, and charges laches and estoppel, the complainants in the bill having permitted large expenditures for care and improvement of the property by defendant. And it also puts in issue the relationship of complainants to Marcos and Teresa Rodriguez, and denies that they are entitled to maintain the bill.

Upon proof being submitted, and after hearing, it was decreed that complainants were descendants and heirs at law of Teresa Rodriguez, the grantee in the patent of the United States hereinbefore referred to, were entitled to 'an undivided interest in and to the lands' in controversy (which were specifically described), 'and for themselves and as representatives of all persons claiming title to said lands through the said Teresa Rodriguez, her heirs and legal representatives,' were 'entitled to maintain this bill to remove cloud from' the lands.

The decree recited the tax deeds and the lands which they purported to convey, and adjudged that the deeds, having been based upon assessments made prior to the issue of the patent, and while the validity of the grant to Marcos was denied by the United States, were absolutely null and void and a cloud upon the title of Teresa Rodriguez and her legal representatives and heirs at law, and set aside.

And it was further decreed that defendant had no title or interest in the patented lands, and that it and all persons claiming under it were enjoined from setting up any title under the tax deeds, or from entering upon or holding possession of the lands or any part thereof.

The decree was affirmed by the circuit court of appeals. The opinion of the court was as follows: 'The lands in controversy were not segregated from the public domain, and the title thereto remained in the United States until the issuance of the patents; therefore they were not taxable by the state of Florida at the several times they were listed for taxes and sold for nonpayment thereof.' [121 C. C. A. 578, 202 Fed. 743.]

Mr. John C. Cooper for appellant.

Messrs. William W. Dewhurst, Joseph H. Jones, and John C. Jones for appellees.

Statement by Mr. Justice McKenna:

Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court: 

Notes
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