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Petty v. Mays et als.-Opinion of Court.

He don't remember whether he turned Gordon off the place before he bought at the tax sale. He says he had possession and rented the property to several persons, and that Gordon was living on the place at the same time. Gordon was there "off and on.” At the time the mortgage was given Gordon lived at East Jacksonville. Afterwards he went on the place again.

Henry Gordon testified in behalf of defendant that he sold the land to Petty in 1874. “Petty was to pay $600 for it; paid $30, and no more; the State gave him deeds, and he has held the property ever since, and I paid him rent.”

It is claimed by defendant that his possesion at the time of the execution of the mortgage, and at the time of the foreclosure sale, was adverse to that of Gordon and that of Jones, the plaintiff, who purchased at the master's sale. This position is not tenable. Petty's possession instead of being adverse is in law subordinate to the rights of Gordon and of his mortgagee.

The question tried in this suit is that of the legal title. An inchoate or equitable right which might be available in equity cannot avail the defendant in ejectment as against the legal title. Singleton vs. Touchard, I Black., U. S., 342; Mezes vs. Greer, 24 How., 268, 275. Jones shows liis title and Petty shows none. He shows that he has violated his verbal agreement to purchase, and that having agreed to pay Gordon $600 he has never paid more than $30, and Gordon, who, according to the testimony, cannot be very intelligent, if he is honest, suffers Petty to obtain what they think is a tax title, and forthwith declares Petty to be his landlord and agrees to pay him rent for the use of the property, never attempting to exact the $600 for which he bargained the property. This is what the testiirony of both Petty and Gordon, so far as it can be understood, goes to prove.

Basnett v. City of Jacksonville-Syllabus.

From the general character of their testimony it is difficult to arrive definitely at any reliable conclusion except that Gordon having obtained Jones' money upon the mortgage by representing that his title is clear, after Petty had bought in the land at his request at a tax sale, and then after giving the mortgage, permitting Petty to obtain a tax ceed which they both pretend to believe carried the title i) Petty and destroyed the lien of the mortgage; all which lends to prove that the transaction was a thinly-disguised scheme of both to cheat Jones out of his money.

If Petty was a purchaser by parol from Gordon in good faith, went into possession, paid him for the property and made improvements pursuant to his agreement to purchase, 1:e may have had a remedy in equity to compel a specific performance as against Gordon. That would be the extent of his rights as to the property, assuming (what is not shown) that he acted in good faith.

The judgment is affirmed.

ARTHUR D. BASNETT, PLAINTIFF IN ERROR, vs. THE CITY

OF JACKSONVILLE, DEFENDANT IN ERROR.

1. Where a section of a law is amended by an enactment that it “shall

read as follows," the amendment desired following, the substituted section becomes, for all purposes in the future, the named section of the original act, and a subsequent amendment of the same section of the original act by an enactment that it shall “read as follows," the amendment desired following, operates to repeal all of the section amended which is not embraced in the

amendment. 2. The amendment of the section of the general act creating a system

of municipal government (Section 23, Chap. 1688, Laws,) which grants the power to municipal corporations to tax for general municipal purposes so as to take away such power, destroys the

Basnett v. City of Jacksonville-Statement of Case.

power to levy a tax for such general purposes. The power and duty to levy and collect a tax for the payment of the principal and interest of the outstanding bonds still exists by virtue of Section 20 of the original act, Chapter 1688, Laws, which is not

repealed or amended by subsequent legislation. 3. Under Section 4, Chapter 151, Laws, authorizing a judgment declar

ing an assessment not lawfully made, the judgment to be entered is an unqualified judgment; and where a part of the assessment is illegal and a part legal, the general judgment is that the assessment is not lawfully made. It cannot be that a part is lawful and a part is illegal.

Writ of Error to the Circuit Court for Duval county.

This is a proceeding under Section 4 of Chapter 151, Laws of Florida, to have the assessment of taxes of the City of Jacksonville for the year 1880 declared illegal. The Circuit Judge dismissed the petition of the plaintiff in error. Said section is as follows:

"That in all cases where assessments are made against any person or persons, body politic or corporate, and payinent of the same may be or shall be refused upon allegation of the illegality of such assessment, such person or persons, body politic or corporate, may apply to the Judge of the Circuit Court by petition setting forth the alleged illegality, and present the same, together with the evidence to sustain it, and the Judge shall decide upon the same, and if found to be illegal shall declare the assessment not lawfully made."

Section 23 of the act of February 4. 1869, (Chap. 1688,) as finally amended by Section 8 of the act of 1877 (Chap. 3024) is as follows:

Sec. 8. That Section twenty-three of said act shall be amended so as to read as follows: The valuation of property, as made by the officers of this State in each year for the purpose of taxation, shall be adopted by all municipal governments as the true valuation of the Basnett v. City of Jacksonville-Opinion of Court.

property within their respective corporations, and the total taxes levied upon property by any municipal corporation, in any one year, shall not exceed one per cent. upon such State valuation; but this provision is not to be so construed as to prevent the said corporation from levying sufficient tax to meet the payment of interest on its outstanding bonds, and to provide for the payment of the principal thereof when the same shall become due; that it shall not he lawful for the government of any city or town to make appropriations, in any one year, for a greater amount than is allowed to be collected by taxation, and it shall not be lawful for any officer of a municipal government to issue a warrant on the treasurer except in payment of an appropriation.

The other facts are sufficiently stated in the opinion.
Cockrell & Walker for Plaintiff in Error.
John Earle Hartridge for Defendant in Error.

MR. JUSTICE WESTCOTT delivered the opinion of the court:

The questions discussed in this case were restricted to the matter of the legality of the assessment of the tax for the year 1880 upon the property of the plaintiff in error. Quite a number of interesting questions concerning the niode of assessment where the power to collect the tax existed were discussed, but in view of the conclusion we reach, their consideration by us is unnecessary. That conclusion is that the city of Jacksonville did not have the power to levy a part of the taxes here complained of. The taxes were for general municipal purposes for the year 1880, and ci tax to meet the sinking fund and interest upon what are known as “Sanitary Improvement Bonds” and “outstanding bonds of the city of Jacksonville of the issue of 1857."

Basnett v. City of Jacksonville-Opinion of Court.

The power of the city of Jacksonville to levy taxes for general purposes was originally granted by the twenty-third section of Chapter 1688, Laws, entitled an act to provide ior the incorporation of cities and towns and to establish a uniform system of municipal government in this State, which was approved February 4, 1869. This section gave the general power to raise by tax and assessment all sums of money that may be required for the use and good government of the city or town and for the carrying out the powers, rights and duties imposed or granted by the act. This section of the act was amended by Chapter 2045 of the Laws, approved February 27, 1875, being an act entitled an act to amend the twenty-third section of an act entitled an act to provide for the incorporation of cities and towns and to establish a uniform system of municipal government in this State, approved February 4, 1869. It was amended in the method prescribed by the Constitution, the enactment being that the said section twenty-three should be "amended so as to read as follows." By this legislation the original section ceased to have any validity as to taxes to be levied by the corporation in the future, except in so far as it constitutes the obligation of a contract, and the section as amended became incorporated into and a part of the original act of the Legislature and the organic act of the municipal corporation. In 1877 the Legislature passed an act which was approved March 8th, 1877. (Chapter 3024, Laws,) entitled an act to amend sections 11, 12, 13, 16, 17, 18, 19, 23 and 29 of an act entitled an act to provide for the incorporation of cities and towns and to establish a uniform system of municipal government in this State, approved February 4th, 1869. Section 23 of the act of 1869 as it was originally enacted we have seen liad ceased to have any existence, and the substituted section filled its place. State vs. Andrews, 20 Tex., 230;

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