PALM ORANGE GROVES, INC.,
v.
JESSE F. YELVINGTON AND LEAH E. YELVINGTON, HIS WIFE
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Palm Orange Groves challenged a writ of possession issued to the Yelvingtons following Volusia County's foreclosure on tax liens. The Florida Supreme Court affirmed the denial of certiorari, holding that the trial court properly struck certain portions of the answer to the rule to show cause and that factual disputes regarding property boundaries must be resolved by the chancellor in the first instance.
The trial court did not err in striking the portions of the answer, as they consisted mostly of evidence, conclusions, and argument rather than proper legal defenses. Any factual controversy regarding whether the buyer takes land according to the true or mistaken survey lines is a matter for the chancellor to decide in the first instance.
“The respondent to the rule was only called on to show cause why a writ of possession should not issue; and an answer to such a rule may be a good answer even though it fails to set up matters sufficiently to justify the discharge of the rule.”
Establishes the standard for answers to rules to show cause and supports the trial court's discretion in striking improper portions
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Join FLexlaw to unlock all legal intelligenceVolusia County initiated foreclosure proceedings for tax liens against the East one-third of lot 109 of Blake. The foreclosure was conducted regularly…
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ON REHEARING GRANTED
It appears that Volusia County brought foreclosure proceedings for the enforcement of its tax liens as prescribed by Chapter 22079, Acts 1943, Section 194.47, F.S.A. against the East one-third (Ys) of lot 109 of Blake. The proceedings appear to have been regular and the final decree confirmed the property in the county; and the County executed a deed to the Yelvingtons who petitioned the Court for a writ of as*463sistance pursuant to Section 20 of Chapter 22079 (supra) Section 194.54 F.S.A.
The petitioner answered the rule to show cause as to why a writ of possession should not be issued and the Court struck portions of the answer to said rule and thereupon petitioners bring this their petition for a certiorari.
The stricken portions of the answer to the rule were mostly in nature of evidence, conclusions or argument. The chancellor did not err even though it would have been harmless to have let the entire answer to the rule nisi to stand. The respondent to the rule was only called on to show cause why a writ of possession should not issue; and an answer to such a rule may be a good answer even though it fails to set up matters sufficiently to justify the discharge of the rule. The respondent is only called on to do the best it can.
It is apparent that there is to be a controversy as to whether the buyer takes the land purchased from the County according to the true lines or the mistaken lines which controversy it is for the chancellor to decide in the first instance.
It follows that on rehearing our former judgment and opinion is overruled and withdrawn and the application for certiorari is denied.
THOMAS, C. J., concurs specially.
TERRELL and CHAPMAN, JJ., and WILLIAMS, Associate Justice, concur.
THOMAS, C. J., concurring specially:
I concur because of the opinion of the court in Palmer, et al. v. Green, et al., filed 15 July 1947.
I concur because of the opinion of the court in Palmer, et al. v. Green, et al., filed 15 July 1947.
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Palm Orange Groves v. Yelvington, 41 So.2d 883 (Fla. 1949)…a decree granting a writ of assistance against it, defendant appeals. Decree reversed with leave to plaintiffs to apply for a decree against county for a refund. This cause was previously before us in Palm Orange Groves, Inc. v. Yelvington et ux., 159 Fla. 462, 32 So. 2d 164. The appellees applied to the Chancellor for a writ of assistance after receiving a deed from Volusia County to the East 1/3 of Lot 109 of Blake Subdivision, as per Plat Book E, page 150, of the Public Records of Volusia County. The…