Sapp v. Warner

• Decision Date: 02 December 1932
• Citation: 144 So. 481,105 Fla. 245
• Parties: SAPP et al. v. WARNER et al.
• Court: Florida Supreme Court

144 So. 481

105 Fla. 245

SAPP et al. v. WARNER et al.

Florida Supreme Court, Division B.

December 2, 1932

On motion to recall a mandate of the Supreme Court (141 So. 124 which was affirmed on rehearing 143 So. 648), for the purpose of directing the lower court to vacate and set aside a final decree in order to amend the pleadings.

Motion denied without prejudice. Appeal from Circuit Court, Dade County; Ira A. Hutchison, judge.

COUNSEL

Redfearn & Ferrell, Semple & Hirschman, and T. J. Dowdell all of Miami, for appellants.

Shackleford, Ivy, Farrior & Shannon, of Tampa, and Evans & Mershon and O. B. Simmons, Jr., all of Miami, for appellees.

OPINION

PER CURIAM.

An appeal in equity is but a step in the cause. Palm Beach Estates v. Croker (Fla.) 143 So. 792. Where a final decree of foreclosure is appealed from, and is on the appeal affirmed, the affirmation is conclusive as to the right of the complainant in foreclosure to have his lien enforced by foreclosure sale for the amount of the decree as affirmed by the appellate court, and the foreclosure operates to enforce the mortgage as against all defenses that were asserted, or that might have been asserted by the defendants by appropriate pleadings prior to the entry of the final decree adjudicating the foreclosure.

But a court of equity at all times retains jurisdiction to do equity in the enforcement of a foreclosure decree rendered by it, until after a sale under it is made and confirmed. And for the purpose of doing equity between the parties as to the enforcement of the decree, such court of equity, even after final decree of foreclosure, may still entertain such further appropriate proceedings as may directly relate to the character and extent of enforcement of the decree by sale. And this is true, even after affirmation of the final decree of foreclosure by an appellate court. See authority hereinafter cited.

This permissible procedure includes the right of the court below, after mandate affirming a foreclosure decree is lodged with it, to entertain on the basis of special and peculiar equities asserted, appropriate supplementary proceedings filed by the defendants in the cause, having for their object the securing of an equitable right to redeem their lands from the decree itself prior to actual sale, in order to allow the defendants to have the benefit of a covenant for partial releases imposing a duty to permit partial redemption that is in equity and good conscience still binding on the mortgagee, unless that question was expressly or impliedly adversely decided in the final decree itself, so that such equitable claim may be said to have become concluded by the affirmance of the final decree.

Our affirmance of the final decree of foreclosure in this case (see Sapp v. Warner, 141 So. 124; Id., 143 So. 648) was not intended by this court to foreclose or cut off any special or peculiar equities the appellants might have obtained by reason of such affirmance, to redeem their individual properties according to special covenants which may still be binding on the mortgagee in a court of conscience. So, without at this time undertaking to adjudicate or decide whether or no any such binding covenants yet exist, or whether or not appellants have waived them if they did exist, we simply construe our own judgment of affirmance and mandate thereon, as not having been intended by this court to cut off the consideration by the court below of special and peculiar equities which appellants may have become entitled to assert for the protection of their own individual right to redeem from the foreclosure decree, their individual properties subject thereto, under the same circumstances that such individual properties could have been released from the mortgage itself before the final decree was entered.

The recall of the mandate is not necessary because the court below is not prohibited by the existing opinion and...