The record in this case shows that Mrs. Minnie F. Hyland, plaintiff below and appellant here, was a widow and the head of a family and owned Lot 3 of Block 51, Mason and Coleman's Addition to Daytona, Florida. On said land was a small hotel known in the Daytona Beach community as the "Hyland House," and the sole source of her livelihood was obtained from the operation of this small hotel.
She was unable to pay the taxes assessed against her home and hotel by the City of Daytona Beach prior to the year 1934, and on the 5th day of February, 1934, the City *Page 332 of Daytona Beach for the sum of $358.21 sold and transferred certificate No. 1373 to the Atlantic Municipal Corporation, and was by the latter transferred and assigned to A.U. Rodney, who in turn made application to the Hon. I. Walter Hawkins, Clerk of the Circuit Court of Volusia County, Florida, for a tax deed on the homestead of the widow. Likewise tax certificate No. 494 on the same property was issued by the City of Daytona Beach to A.U. Rodney for the sum of $347.38 on the 7th day of March, 1938, for the unpaid city taxes for the year 1934.
On July 26, 1938, the lower court, on a sworn bill of complaint filed by the plaintiff below, entered an order restraining the Clerk of the Circuit Court from issuing a tax deed to the homestead on certificates numbered 1373, dated February 5, 1934, and 494, dated March 7, 1938. On January 11th, 1939, the lower court entered an order sustaining a motion to dissolve the restraining order previously issued and in the same order dismissed the bill of complaint. From this order an appeal has been perfected to this Court.
Chapter 10466, Special Acts of 1925, Laws of Florida, is the charter of the City of Daytona Beach and was amended by Chapter 16390, Special Acts of 1933, Laws of Florida. While Section 1 of Chapter 16390 provides that no foreclosure proceedings may be based on a tax certificate issued by the City of Daytona Beach within two years after date of issuance, the owner of property is granted two years from date of issuance of the tax certificate in which to redeem property situated within the corporate limits of the City of Daytona Beach not used and occupied as a homestead. Four years from date of issuance of a tax certificate by the City of Daytona Beach is allowed in which to redeem or pay certificates on property used as a homestead and during this four-year period no foreclosure proceedings can be instituted thereon. Section 2 of *Page 333 Chapter 16390, supra, permits and allows installment payments on tax certificates on property during the two and four-year periods. The prayer of the bill of complaint sought (a) an accounting as to payments made by plaintiffs to the City of Daytona Beach during the four-year period provided in Chapter 16390, supra; and (b) that the four-year period of redemption as to certificate No. 494 began to run on the date of the issuance thereof by the City of Daytona Beach, viz., March 7, 1938.
The allegations appearing in the bill of complaint, and being the basis of the prayer thereof, are each admitted to be true on the motion to dismiss. If a bill contains equity, a motion to dismiss should not be granted. It is the law of Florida that a motion to dismiss is equivalent to a general demurrer and admits all allegations of the bill well pleaded. See Hartford Fire Ins. Co. v. Brown,
This Court is committed to the rule that the issuance continuance or the dissolution of an injunction is addressed largely to the sound judicial discretion of the court to be governed by the circumstances of each case. See Godwin v. Phifer,
The bill of complaint contains equity and it was error on the part of the lower court to grant the motion to dismiss the bill of complaint.
The order appealed from dismissing the bill of complaint is hereby reversed. *Page 334
