Title: Sapp et al. v. Warner et al.
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Title: Sapp et al. v. Warner et al.
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Sapp et al. v. Warner et al. (JDV Box 86)
General Note: Box 22, Folder 2 ( Groundwater - Old Florida and California Cases - 1900's ), Item 21
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Full Text



141 SOUTHERN REPORTER


above given from the opinion in the rec(
case of Anderson Mill & Lumber Co.
Clements.
I am therefore of the opinion that the
der of the court below sustaining the dcml
rer and dismissing the bill should be affirm







SAPP et al. v. WARNER et al.

Supreme Court of Florida.
April 19, 1932.

I. Notice -1.
"Notice" may be "actual" or "constr
tive," and actual notice may be "express"
"implied."
"Constructive notice" is notice imputed
to person not having actual notice; "ex-
press notice" includes what might be
called direct information; and "implied
actual notice" includes notice inferred
from the fact that the person has means of
knowledge, which it was his duty to use
and which he did not use.
[Ed. Note.-For other definitions of
"Actual Notice," "Constructive Notice,"
"Express Notice," and "Implied Actual
Notice," see Words and Phrases.]
2. Records. = 19.
Record is constructive notice to cre
tors and subsequent purchasers not only
its own contents, but such other facts
would have been learned, if record had be
examined and inquiries suggested there
duly prosecuted.
3. Guardian and ward =108. -
Recording of guardian's deed impui
notice of indispensable proceedings prelil
nary to execution of such deed.
SThis is true, because neither proceed-
/ ings before county judge nor guardian's
deed standing alone would be sufficient to
convey minor's title, but both together
constitute one indivisible unit forming
single link in title chain.
4. Vendor and purchaser =229(1).
If in investigating title purchaser w'
common prudence must have been apprhs
of another right, notice of that right is p
sumed as matter of implied actual notice.
5. Notice <5.
Means of knowledge with duty of usi
them are in equity equivalent to knowle6
itself.
6. Vendor and purchaser 0-229(5).
Execution of new mortgages restati
previous one did not change equitable effi


ent of implied actual notice of previous unre-
v. corded mortgage, since new mortgages did
not merge, release, or discharge prior mort-
or- gage.
ir- 7. Guardian and ward =108.
ed. That guardian's w;lrratty deed did not
show orders or proceedings of (county ju4ge .
on which it was b;ised did not prevent it
from being constructive notice of such orders
and proceedings.
8. Guardian and ward CO08.
Proper record of guardian's deed, with
concomitant necessity imposed on those re-
lying thereon to look to records to deter-
mine whether it had been duly authorized,
held to warrant finding of implied actual no-
tice of existence of unrecorded mortgage.
9. Appeal and error =996.
ac- Chancellor's inference of fact must be
or affirmed, in absence of clear showing that it
was unwarranted under evidence and agreed
stipulation of fact.
BROWN, J., dissenting.

En Bane.
Appeal from Circuit Court, Dade C6unty;
Ira A. Hutchison, Judge.
Suit by Annie Lester Patterson Warner and
others against William E. Sapp and others.
From an adverse decree, defendants appeal.
Affirmed.
Redfearn & Ferrell, Semple & Hirschman,
di- and T. J. Dowdell, all of Miami, for appel-
of lants.
as Shackleford Ivy Farrior & Shannon, of
*en Tampa, and Evans & Mershon and 0. B. Sim-
*by mons, Jr, all of Miami, for appellees.

S DAVIS, J.
:ed From a final decree foreclosing an un-
ni- recorded purchase-money mortgage, the de-
fendants below, William E. Sapp and Mrs.
William E. Sapp, his wife, Commercial Bank
& Trust Company, a Florida corporation, and
Lindsey Hopkins, have entered their appeal
on behalf of themselves, and all of their sim-
ilarly situated codefendants, assigning as
error the entry of said final decree for the
complainants. The decree,appealed fromwasa
h arrived at on the basis of the record before
ih the chancellor as it appeared on the final hear-
ed ing, considered in connection with a special
re- stipulation of facts which had been agreed to
by all the parties, so as to directly present *
the one controlling point of law necessary to
ing be determined in order to fix the equities.
Ige The case is apparently one of first impress
,.sion in this court, and in view of the num-
ber of defendants who will be affected by
tng the ultimate decision, the question of law in-
ect volved appears to be of. considerable impor-


C=For other cases see same topic and KEY NUMBER in all Key Number Pigests and Indexes


124 Fla.








SAPP v. WARNER
141 So.


tance. Oral argument was had before Divi-
sionf B, where the controversy over the ques-
tion was ably presented by both sides. In
addition to this, the court has had the benefit
of elaborate briefs convincingly prepared and
filed by several of different counsel for appel-
lants; it appearing that the parties inter-
ested on the appellants' side of the ques-
tion amount to nearly two hundred in num-
ber, due to the peculiar circumstances under
which this case arose.
Notwithstanding the voluminous record,
the facts are not controverted, and there is
but one outstanding question of law present-
ed for decision, upon the determination -of
which will depend the reversal or affirmance
of the decree appealed from: "Is a person
who claims under a duly recorded deed from
the -guarlian of a minor, whose authority
to make the deed is dependent upon proceed-
ings had.before the County Judge, charged
with notice of the terms and conditions upon
which the guardian was authorized by the
County Judge to sell the minor's land, when
it appears that while the grantees from the
grantee of the guardian are otherwise bona
fide purchasers for value without notice, the
records of the County Judge, neverthe-
less, show that the lands involved in a fore-
closure suit brought to enforce an unrecord-
ed purchase money mortgage given to the
guardian and another, by his original gran-
tee, were lands sold by such guardian under
authority of the Court, upon terms of part
cash and balance to be secured by a purchase
money mortgage on the land sold, it appear-
ing that all of the defendants claim their in-
terests under the recorded deed from the
guardian, executed under and in pursuance
of the County Judge's proceedings, but who
were without any notice or knowledge of the
unrecorded purchase money mortgage, except
such as would be charged to them by virtue
of what could have been ascertained by in-
quiry based upon the proceedings taken by
the guardian before the County Judge?"
The lower court decided the question in the
affirmative, and decreed that the foreclosure
should proceed under complainants' un-
recorded purchase-money mortgage, not-
withstanding the claims of the defendants
that they should be considered as bona fide
purchasers for value, without notice, from
the guardian's original grantee under the re-
corded warranty deed which the guardian
had executed at the time of the guardian's
sale.
The facts, stated chronologically, are as fol-
lows:
The complainant Mrs. Warner was the
daughter of the complainant Mrs. Markley.
Mrs. Warner (formerly Annie Lester Pat-
terson), on June 23, 1911, and at the time of
the making of the guardian's sale herein-
after mentioned, was a minor; James M.


Jackson, Jr., was the legally constituted guar-
dian of her estate, under order of the county
judge of Dade. county.
The minor was originally seized and pos-
sessed of the fee-simple title to the lands in-
volved in this suit, subject to the estate by
dower of her mother, Mrs. Markley.
On June 23, 1911, the county judge of Dade
county entered an order based upon a pe-
tition filed by James M. Jackson, Jr., guard-
Ian, authorizing the guardian to sell the
minor's interest in the real estate involved
in-this suit and other lands, at private sale,
for cash or upon terms. On September 6,
1932, James M. Jackson, Jr., filed his report
of sale in the office of county judge of Dade
county, showing that the real estate involved
in-this suit had been sold to George E. Mer-
rick for the sum of $20,000 upon the follow-
ing terms: $2,000 cash and $18,000 in five
years, together with interest at the rate of 8
per cent. per annum, payable semiannually on
all deferred payments, and that the said de-
ferred payments were to be secured by a
purchase-money mortgage on said property.
The report further shows that the property
had been sold at private sale to the highest
and best bidder "on reasonable terms" to
George E. Merrick for the sum of $20,000,
"two-thirds of which the said Annie Lester
Patterson, a minor, is entitled to receive,
and will receive, and the other one-third of
said $20,000 being paid to Jessie B. Markley,
formerly Jessie B. Patterson, widow of Sam-
uel L. Patterson, and mother of Annie Lester
Patterson, a minor," on certain terms and
conditions as to deferred payments which
contemplated and embraced the total pur-
chase price as being subject thereto.
On September 5, 1923, based upon the re-
port of sale aforesaid, the county judge enter-
ed an order confirming the said sale and
directing the guardian to execute and de-
liver a deed to George E. Merrick, conveying
all of the right, title, and interest of the minor
in and to said property, and authorizing and
empowering him "to take back a purchase
money mortgage constituting a first lien
against the property for all deferred pay-
ments."
On August 16, 1923, a deed was executed by
Jessie B. Markley, joined by her husband, and
James M. Jackson, Jr., guardian of Annie
Lester Patterson, a minor, conveying the prop-
erty to George E. Merrick. This deed was
dated August 16, 1923, but It was not filed for
record until September 7. 1923, the day after
the county judge entered the order confirming
the sale.
On August 4, 1923, George E. Merrick ex-
ecuted two promissory notes, bearing the
date and evidencing the deferred portion of
the purchase price for the land. One of the
notes was for $12,000, payable to the order of
James M. Jackson, Jr., as guardian of Annie


Fla. 125







141 SOUTHERN REPORTER


Lester Patterson, and the other of the notes
was for $6,000, payable to the order of Jessie
B. Markley. The notes, according to their
terms, were to become due on or before five
year after said date.
To secure these notes, George E. Merrick
Executed and delivered a purchase-money
mortgage upon the land he had purchased at
the guardian's sale. This mortgage was ex-
ecuted to James M. Jackson, Jr., as guardian
of Annie Lester Patterson. a minor, and to
Jessie B. Markley, individually, because of
her own individual interest in the same prop-
erty, and was on the same date as the notes
which were secured thereby. This mortgage
was never recorded because it was lost or mis-
.placed and was not found until after the bill
was filed in this cause and shortly before the
final hearing.
In 1920, Merrick and wife executed and
delivered two mortgages, dated August 4,
1923, acknowledged September 30, 190o. one
of which was executed to James M. Jackson,
Jr., as guardian of Annie Lester Patterson,
for the purpose of securing the note of $12,-
000 executed to the guardian, as aforesaid,
and the other of which was executed to Jessie
B. Markley for the purpose of securing the
note for $6,000, payable to Mrs. Markley, as
aforesaid. Each of said mortgages showed
that it was a purchase-money mortgage upon
the land and was given in lieu of the former
mortgage of like import, tenor, and date,
which had.been lost prior to record. These
last-mentioned mortgages were filed for rec-
ord on March 4, 1927, and were recorded.
The parcel of land involved in this suit,
when conveyed to Merrick, was an entire par-
cel, but after the purchase thereof by Mer-
rick he caused the same to be subdivided in-
to lots and blocks which were later sold from
time to time to the numerous defendants who
later appeared to resist the foreclosure here
involved.
On November 1, 1924, after the record of
the deed from Jackson, as guardian, and Mrs.
Markley to Merrick, but before the execution
and record of the two evidentiary mortgages
above mentioned, Merrick executed to the ap-
pellant A. J. Orme, as trustee, a mortgage up-
on all of said lands and other lands, securing
an indebtedness of $300,000, and after the
record of the deed from Jackson, as guardian,
' and Mrs. Markley to Merrick, but before the
filing for record of the two evidentiary mort-
gages above mentioned. Merrick executed
deeds to certain of the defendants described
in the bill, purporting to convey specified lots
in the subdivision of the property conveyed
by the guardian and Mrs. Markley to him.
These deeds appear to have been recorded aft-
I_ er the deed from the guardian and Mrs. Mark-
ley to Merrick, but before the recording of
the two evidentiary mortgages above men-
tioned.


Merrick later executed a deed conveying to
Coral Gables Corporation all of the land, ex-
cept such lots as had theretofore been con-
veyed by him to certain of the doffeidants de-
scriled in the bill. This deed was also execut-
ed after the recording of the deed from the
guardian and Markley to Merrick, but be-
fore the filing for record of the two eviden-
tiary mortgages.
After Coral Gables Corporation received
the deed above mentioned, it executed to cer-
tain of the defendants described in the bill,
deeds conveying certain of the lots in the
subdivision. All of these deeds likewise were
executed after the recording of the deed from
Jackson, as guardian, and Mrs. Markley to
Merrick, and some of them were executed be-
fore the filing for rc,'ord of the two eviden-
tiary mortgages.
Certain of the defendants described in the
bill received deeds from Coral Gables Cor-
poration conveying specified lots in the sub-
division, which deeds were executed and re-
corded after the filing for record of the two
evidentiary mortgages above mentioned.
The bill for foreclosure was filed October
27, 192S. It sought the foreclosure of the orig-
inal unrecorded and lost mortgage deed dated
August 4, 1923, executed by Merrick to James
M. Jackson, Jr.. as guardian of Annie Lester
Patterson, a minor, and Jessie B. Markley,
for default in the payment of principal and
interest of the secured debt. The two later
mortgages executed and delivered subsequent
to the execution and delivery of the original
unrecorded mortgage deed appear to have
been referred to in this foreclosure bill for
the sole purpose of establishing the terms and
provisions of the original mortgages, which
at the time of the filing of the bill was not at
hand, because of it having been misplaced
under the circumstances hereinbefore stated.
The effect of the decree of foreclosure is to
hold that the many defendants who had ac-
quired their titles to their individual lands
through the chain of title containing the re-
corded deed from Jackson, the guardian, and
Mrs. Markley, were not bona fide purchasers
for value without notice in so far as the two
unrecorded purchase-money mortgages from
Merrick to the guardian, and Mrs. Markley
were concerned, and that by reason thereof
the complainants were both entitled to en-
force-theirtmortgages by foreclosure proceed-"
ings brought and maintained not only by the
minor, who had subsequently attained her
majority, but by Mrs. Markley, who had
taken a separate mortgage for her part of
the single unpaid purchase price.
[1] It was undoubtedly the purpose of sec-
tion 569S, C. G. L. section 3S&2 R. G. S.,1 to
' "No conveyance, transfer or mortgage of real
property, or of any. interest therein, nor any lease
for a term of one year or longer, shall be good
and effectual in law or equity against creditors or


I- *,-***-*-*


126 Fla.







SAPP v. WARNER
141 So.


require all mortgages on real estate to be re-
corded in a separate mortgage book kept in
the office of the clerk of the circuit court
(see section 485S, C. G. L., section 2077. R. G.
S.) in order for same to be good and effectual
, in law or equity against creditors or subse-
quent purchasers for a valuable considera-
tion, and without notice. Such has been the
construction consistently put upon the stat-
ute by this court. Carolina Portland Cement
Co; v. Roper, GS Fla. 299, 67 So. 115; People's
Bank of Jacksonville v. Arluckle, 82 Fla.
479, 90 So. 458; Rambo v. Dickenson, 92 Fla.
756. 110.So. 352.
But the statute also expressly recognizes
that "notice" of an unrecorded instrument
*may take-creditors or slub-eluent purchasers
out of the class entitled to rely on the rec-
ord, or absence of a record, of a particular
mortgage sought to be foreclosed as against
those who claim to be subsequent purchasers
for a valuable consideration without notice
of property covered by an unrecorded mort-
gage.
Notice is of two kinds, actual and con-
structive. "Constructive notice" has been de-
fined as notice imputed to a person not hav-
ing actual notice; for example, such as would
be imputed under the recording statutes to
persons dealing with property subject to
those statutes. "Actual notice" is also said
to be of two kinds: (1) Express, which includes
what might be called direct information; and
(2) implied, which is said to include notice
inferred from the fact that the person had
means of knowledge. which it was his duty to
use and which he did not use, or, as it is
sometimes called, "implied actual notice."
Cooper v. Flesner, 24 Okl. 47, 103 P. 1016,
23 L. R. A. (N. S.) 1180, 20 Ann. Cas. 20; Sim-
mons Creek Coal Co. v. Doran, 142 U. S. 417,
12 S. Ct. 239, 35 L. Ed. 1003; Hoy v. Brain-
hall, 19 N. J. Eq. 563, 97 Am. Dec. 6S7; Acer
v. Westcott, 46 N. Y. 384, 7 Am. Rep. 355.
Constructive notice is a legal inference, while
implied actual notice is an inference of fact,
but the same facts may sometimes be such
as to prove both constructive and implied ac-
tual notice. Knapp v. Bailey, 79 Me. 195, 9
A. 122, 1 Am. St. Rep. 295.
The principle applied in cases of alleged im-
plied actual notice is that a person has no
right to shut his eyes or ears to avoid in-
formation, and then say that he has no no-
tice; that it will not suffice the law to re-
main willfully ignorant of a thing readily
ascertainable by whatever party puts him on
subsequent purchasers for a valuable consideration
and without notice, unless the same be recorded
according to law; nor shall any such instrument
made or executed by virtue of any power of attor-
ney be good or effectual in law or in equity
-against creditors or subsequent purchasers for a
valuable consideration and without notice unless
the power of attorney be recorded before the ac-
cruing of the right of such creditor or subsequent
purchaser."


Fla. 127


inquiry, when the means of knowledge is at
hand. McQuiddy v. Ware, 20 Wall. 14, 22 L.
Ed. 311; Woodruff v. Williams, 35 Colo. 28,
S5 P. 90, 5 L. R. A. (N. S.) 9SG; Valnu v. Mar-
bury, 100 Ala. 438. 14 So. 273, 23 L. R. A. 325,
46 Am. St. Rep. 70; Webb v. John Hancock
Mutual Life Ins. Co., 162 Ind. 616, 69 N. E.
1000, 66 L. R. A. 32.
[2, 3] In the case at bar the appellees con-
tend that since the deed dated August 16,
1923, executed by Jessie B. Markley and
James M. Jackson, Jr., as guardian of Annie
Lester Patterson, a minor, conveying the
property to George E. Merrick, was itself
duly recorded under the recording statutes,
that the record of this deed constitutes no-
tice to creditors and subsequent purchasers
not only as to the existence vel non and
contents of that deed, but also as to all such
other facts as they would have learned from
that record, had it been examined, including
the proceedings before the county judge
which culminated in the execution of said
guardian's deed, the validity of which deed
could only have been determined by an in-
vestigation of the proceedings had before the
county judge, upon which the legality of the
deed to convey the minor's title necessarily
depended. Charles v. Roxana Petroleum
Corp. (C. C. A.) 282 F. 983.
These guardianship proceedings, so it is
asserted, show every fact with respect to the
unrecorded purchase-money mortgage of the
complainants, and defendants, being deemed
to have implied actual knowledge thereof,
through the inquiry suggested by the guard-
ian's deed into the county judge's proceed-
ings, are to be deemed charged in this case
with knowledge of what was shown by the
proceedings had before the county judge,
since the guardian's deed, without reference
to such proceedings to support its validity,
would not have been effectual as proof of
title in any one claiming under it. McIntrye
v. Parker, 77 Fla. 690, S2 So. 253; Davis v.
Shuler, 14 Fla. 43S; McGehee v. Wilkins, 31
Fla. 83, 12 So. 228.
In several jurisdictions the rule is that
purchasers and creditors are charged only
by construction with notice of the facts ac-
tually exhibited by the record made under
the recording statutes, and not with such
facts outside of the record itself, as might
have been ascertained by inquiries which an
examination of the record would have in-
duced a prudent man to make. Neas v.
Whitener-London Realty Co., 119 Ark. 301,
178 S. W. 390, L. R. A. 1916A, 525, Ann.
Cas. 1917B, 7SO; Gilchrist v. Gough. 63 Ind.
576, 30 Am. Rep. 250; Taylor v. Harrison,
47 Tex. 451, 26 Am. Rep. 301.
But the rule supported by the best author-
ity is that the record is constructive notice
to creditors and subsequent purchasers not
only of its own existence and contents, but








141 SOUTHERN REPORTER


of such other facts as those concerned with
it would have learned from the record, if it
had been examined, and inquiries suggested
by it, duly prosecuted, would have disclosed.
Nolen v. Henry, 190 Ala. 540, 67 So. 500. Ann.
Cas. 19171, 702; VWtzler v. Nichols, 53 Wash.
285, 101 P. S67, 132 Am. St. Rep. 1075; Gaines
v. Saunders, 50 Ark. 322, 7 S. W. 301; Sim-
mons Creek Coal Co. v. Doran, 112 U. S. 417,
12 S. Ct. 239, 35 L. Ed. 1003; II. B. Clatlin
Co. v. King, 50 Fla. 707, 48 So. 37; Gulf
Coast Canning Co. v. Foster (Miss.) 17 So.
683; Martin v. Nebl.ett, 86 Tenn. 383, 7 S.
W. 123.
-[4, 5] If, in the investigation of a title, a
purchaser, with common prudence, must have
been apprised of another right, notice of
that right is presumed as a matter of im-
plied actual notice. Reeder v. Barr, 4 Ohio,
446, 22 Am. Dec. 762; Singer v. Scheible, 109
Ind. 575, 10 N. E. 616; American Inv. Co.
v. Brewer, 74 Okl. 271, 181 P. 294; Cambridge
Valley Bank v. Delano, 48 N. Y. 326; Blake
v. Blake, 260 Ill. 70, 102 N. E. 1007. Means
of knowledge, with the duty of using them,
are in equity equivalent to knowledge itself.
Cordova v. Hood, 17 Wall. 1, 21 L. Ed. 587.
See, also, Taylor v. American Nat. Bank, 03
Fla. 631, 57 So. 678, Ann. Cas. 1914A, 309;
Hunter v. State Bank of Florida, 65 Fla.
202, 61 So. 407; McRae v. McMinn, 17 Fla.
876; Figh v. Taber, 203 Ala. 253, 82 So. 495.
In the case at bar, even if the order of the
county judge, dated September 6, 1923, can-
not be construed to be constructive notice of
any matter, contract, lien, or relationship re-
cited therein over which the county judge had
no jurisdiction, as argued by appellants, it
does not necessarily follow that appellants
can base their claims of title to the land in
question upon the assumed validity of the
guardian's deed to Merrick, and at the same
time repudiate and deny notice of matters
which would have been discovered by a pru-
dent man put on inquiry, especially when
those matters must unquestionably have been
brought to their attention if they had exam-
ined the proceedings of the county judge
which constituted the guardian's authority
for the making of such a deed.
This is true because neither the proceed-
ings before the county judge, nor the guard-
ian's deed standing alone, was sufficient to
convey the minor's title. Both together con-
stituted one inseparable and indivisible unit
forming a single link in the title chain, be-
cause in an action of ejectment the guard-
Sian's deed alone would not have been admis-
Ssible in evidence. McGehee v. Wilkins, 31
Fla. 83, 12 So. 228, and cases cited.
So recording of the guardian's deed im-
puted notice of the indispensable proceedings
preliminary to the execution of that deed,
which had been taken before the county
judge to give that deed validity, and under


the authorities we have heretofore cited,
those who would rely upon such deed as evi-
dence of the rights they assert, must do so
charged with implied actual notice of all
facts appearing in the proceedings had before
the county judglc, and of all facts that a pr-
dent man examining those proceedings would
have learned upon reasonable inquiry from
the facts disclosed there.
And in this case it appears that an ex-
amination of the records of the proceedings
before the county judge would have brought
knowledge of both the mortgages sought to
be foreclosed to the appellants, since a single
consideration of $20,000 as the purchase price
to be paid for the land was referred to in
the guardian's report to the county judge,
and from that report it is plainly deducible
that the unpaid balance of $1S,(000 was to be
extended over a period of five years, payable
in deferred payments to l;oth of the inter-
ested owners, and not to the guardian alone.
[6] Nor did the execution of the two new
mortgages on September 20, 1926, change the
equitable effect of the implied actual notice
to appellees of the previous unrecorded mort-
gage. The subsequent mortgages appeared
on their face to be but mere restatements of
the previous one for the purpose of having the
same placed on record. The execution of
the two new mortgages on the same property,
to cover the same debt that was secured by
the misphlced and unrecorded mortgage, did
not operate to merge, release, or discharge
the prior mcorigage, unless so intended by the
parties and unless so made by them for the
purpose of having them operate as a pay-
ment or satisfaction, so as to cancel the for-
mer security and substitute the latter. In
such situation, the original mortgage cannot
be deemed to have been discharged by the
execution of the subsequent ones, in the ab-
sence of a clear showing of an intention by
the parties to that effect. Such intention is
affirmatively refuted in the case at bar. See
2 Jones on Mortgages (Sth Ed.) 666, S 11S7;
41 C. J. 806 et seq. Neither was any such
merger, estoppel, payment, satisfaction, or
discharge of the unrecorded mortgage by the
subsequent ones pleaded by defendants. See
Loomis v. Dubois, 82 Fla. 293, 89 So. 804.
17] But it is argued also that the execution
by the guardian of a warranty deed to-Mev -
rick, without mentioning any recitals whatso-
ever therein to show the orders or other pro-
ceedings of the county judge upon which it
was based, constitutes no constructive notice
of said orders and proceedings, although such
warranty deed was properly recorded, be-
cause such a deed without recitals is "not
free from criticism." 12 R. C. L. 1142, par.
36.
The answer to this proposition is that
while such recitals are appropriate, and good
form dictates that they should have been


128 Fla.







SAPP v. WARNER
141 So.


incorporated to render the deed "free from
criticism," the absence of them cannot change
the legal status of the instrument as being
a guardian's deed whose essential validity
can only be sustained when shown to be
predicated upon valid preliminary proceed-
ings before the county judge, necessary to
have authorized the guardian to have legally
made such a deed. The deed appears to
have been executed by a guardian describ-
ing himself as such, so the absence of re-
citals in that deed describing the proceed-
ings by which it was authorized is imma-
terial, since, as we have pointed out, the
validity of that deed could only have been
determined by examining the records in the
-office of'the county judge, and'if such ex-
amination had been made, the fact of the
probable and likely existence of the two out-
standing unrecorded mortgages must neces-
sarily have been noticed.
[8, 9] The proposition we decide is not that
the record of the guardian's deed constituted
constructive notice per se of the entire pro-
ceedings before the county judge upon which
that deed was based, but that the proper
record of such deed, with the concomitant
necessity imposed upon those relying on it
to look to the records of the county judge to
determine whether it had been duly author-
ized, warranted a finding by the court of im-
plied actual notice of the existence of the
two unrecorded mortgages under the facts
of this case, as shown by the evidence and
the stipulation. The chancellor held that
as a matter of law there was such implied
actual knowledge, which is an inference of
fact drawn by the court as a matter of law,
and not by the law itself, and in the ab-
sence of any clear showing that this infer-
ence of fact was unwarranted under the evi-
dence and the stipulation, we must affirm
the chancellor's finding on that score.
"Constructive notice," as we have hereto-
fore pointed out, is an inference the law
itself draws, and which cannot be refuted
when the facts giving rise to it are made
to appear. "Implied actual notice," on the
other hand, is an inference of fact which
may be drawn by the court as a matter of
law, when warranted by the circumstances
of a particular case calling for its applica-
tion in order to do equity.
As has been stated by the Court of Civil
Appeals of Texas. in the case of Loomis v.
Cobb, 159 S. W. 303, 307: "It is a familiar
and thoroughly well-settled principle of real-
ty law that a purchaser has constructive
notice of every matter connected with or af-
fecting his estate which appears by recital,
reference, or otherwise, upon the face of any
deed which forms an essential link in the
chain of instruments through which he de-
raigns his title. I The rationale of the rule is
that any description, recital of fact, or refer-
141 SO.-9


Fla. 129


ence to other documents puts the purchaser
upon inquiry, and he is bound to follow up
this inquiry, step by step, from one discovery
to another and from one instrument to an-
other, until the whole series of title deeds is
exhausted and a complete knowledge of all
the matters referred to and affecting the es-
tate is obtained. I Being thus put upon in-
quiry, the purchaser is presumed to have
prosecuted it until its final result and with
ultimate success. The rule of no-
tice thus imputed is based upon the legal
presumption that information has been com-
municated to or acquired by a party. The
presumption is not conclusive but rebuttable.
* It may be stated as a general prop-
osition that in all instances of constructive
notice belonging to this class, where it arises
from information of some extraneous facts,
not of themselves tending to show an actual
notice of the conflicting right, but sutlicien4
to put a prudent man upon an inquiry, the
constructive notice is not absolute; the legal
presumption arising under the circumstances
is only prima facie; it may be overcome by
evidence, and the resulting notice may there-
by be destroyed. Whenever, therefore, a
party has merely received information, or has
knowledge of such facts sufficient to put him
on an inquiry, and this constitutes the sole
foundation for inferring a constructive no-
tice, he is allowed to rebut the prima facie
presumption thence arising by evidence; and
if he shows by convincing evidence that he
did make the Inquiry, and did prosecute it
with all the care and diligence required of a
reasonably prudent man, and that he failed
to discover the existence of, or to obtain
knowledge of, any conflicting claim, interest,
or right, then the presumption of knowledge
which had arisen against him will be com-
pletely overcome; the information of facts
and circumstances which he had received will
not amount to a constructive notice. What
will amount to a due inquiry inust largely de-
pend upon tlhe circumstances of each case.
If, on the other hand, he fall to make any in-
quiry or to prosecute one with due diligence
to the end, the presumption remains opera-
tive, and the conclusion of a notice is ab-
solute."
In this case the inference of implied actual
notice was warranted by the fact that the
persons having constructive notice of the rec-
ord of the guardian's deed must in any event
have looked to the proceedings which were
necessary to support it, and accordingly must
be charged with implied actual notice of what
an inquiry suggested to a prudent man by
those proceedings would have disclosed.
There is nothing in the stipulation which in-
hibited the court from finding such mnplied
actual notice as a matter of law from the
facts before him in this case, since there was
no showing that the inquiry suggested by the
guardian's proceedings was made, and the







141 SOUTHERN REPORTER


facts not discovered after the exercise of due
diligence.
It follows from what has been said that
the interests asserted by the answers of the
appellants were subordinate in equity to the
right of foreclosure asserted by the appel-
lees, and that the chancellor properly so held
when he entered his decree of foreclosure,
which should be and is hereby affirmed.
Affirmed.

BUFORD, C. J., and WHITFIELD, and
ELLIS, JJ., concur.

BROWN, J., dissents.

TERRELL, J, not participating.






BENSON v. MARTIN et al.

Supreme Court of Florida.
April 19, 1932.

Specific performance e=87.
Complainants having conveyed realty
made subject of exchange contract to third
persons held not entitled to specific perform-
ance as against other party.
Complainants were not entitled to spe-
cific performance of contract of exchange
because they, after defendant declined to
complete the exchange of titles, conveyed
the property made subject of the contract
to third parties, thereby making the
agreement to exchange impossible of per-
formance on both sides, the agreement
of exchange being an entirety.
DAVIS, J., dissenting.


Appeal from Circuit Court, De Soto Coun-
ty; W. J. Barker, Judge.
Suit by Budley Martin and wife against J.
Benson. Decree in favor of the complain-
ants, and the defendant appeals.
Reversed.
Treadwell & Treadwell, of Arcadia, for
appellant.
Leitner & Leitner, of Arcadia, for appel-
lees.

PER CURIAM.
This appeal is from a decree for specific
performance and incidental relief by injunc-
tion.
It appears that Benson owned a home in
Arcadia and the Martins had a home in the


country which had not been fully paid for;
a deed of corneyance therefore from Keen be-
ing in escrow. The parties verbally agreed
to exhclnge their homes; Benson agreeing to
pay Keen a balance due on the Martin home,
abstracts of title to be mutually furnished.
Each party took possession of the other's
home. There was delay in clearing the title
to the Marltin home, pending which, Benson,
without paying the balance due on the Mar-
tin home, declined to complete the exchange
of titles to the homes. The Martin home
was thereafter conveyed to third persons.
The Martins here seek an enforced execution
to them of a deed of conveyance to the Ben-
son home, and Incidental relief.
If the particular agreement to exchange
homestead real estate be enforceable, and
Benson was not justified in refusing to com-
plete the agreed exchange because of the de-
lay in perfecting the title to the Martin
home, the conveyance of the Martin home to
others makes the agreement to exchange
impossible of complete execution, and the
Martins are not entitled to specific perform-
ance when Benson cannot also have it; the
agreement to exchange homes being an en-
tirety.
Reversed.

BUFORD, C. J., and ELLIS, TERRELL
and BROWN, JJ., concur.

DAVIS, J. (dissenting).
The parties entered into a verbal contract
to exchange properties in which each of
them had an interest. The contract was
partially executed. There was nothing left
to be done but to make deeds to the proper-
ties, since possession was taken by each of
them at the time of the agreement for ex-
change. Benscn owned a city home; the
Martins owned a country home. The Benson
home was paid for. The Martins' country
place was paid for with the exception of $350
balance, which Benson assumed and agreed
to pay. When each of the parties delivered
possession to the other under this trade, Ben-
son stepped into the Martins' shoes, and the
Martins stepped into Benson's shoes. To
that extent the trade was as fully executed
as if actual deeds had been made and ex-
changed, and the purpose of the suit, while
called one for specific performance of a con-
tract to convey, was in reality not a suit to
compel the exchange (because that had al-
ready been made), but was a suit to compel
Benson to perform his obligation to give to

the Martins evidence (in the form of a deed
of conveyance) showing that exchange, and
to prevent Benson from prosecuting suits at
law to interfere with the possession of the
Martins.
This is not in reality a suit for specific per-


G;For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes


130 Fla.







143 SOUTHERN REPORTER


SAPP et al. v. WARNER et aL *
Supreme Court of Florida.
Sept. 28, 1932.

1. Guardian and ward =100.'
Guardian's sale of minor's realty must
strictly comply with court order to be valid.
2. Mortgages =148.
Novation ~I1.
Lien of unrecorded purchase-money
mortgage, taken by guardian as required by
court order authorizing sale of ward's realty,
held not extinguished by merger or novation
on execution and recording of purchaser's
subsequent evidentiary mortgage.
3. Guardian and ward =8100.
Existence of purchase money notes and
first lien mortgage securing them was indis-
pensable to validity of guardian's deed of
ward's realty pursuant to court order requir-
ing guardian to take mortgage for deferred
payments.
4. Mortgages =168.
Actual, as distinguished from construc-
tive, notice of unrecorded mortgage may be
implied as well as express.
Law writers and judges frequently re-
fer to any kind of imputed notice, charge-
able to one because of circumstances
binding on him, as "constructive notice,"
whether actually known to him or not,
and term "constructive notice," in broad
sense, is frequently used to describe what
is in strictissimis verbis merely "implied
actual notice."
[Ed. Note.-For other definitions of
"Constructive Notice" and "Implied Ae-
tual Notice," see Words and Phrases.]
5. Guardian and ward @>108.
Purchasers of realty, chain of title to
which disclosed guardian's deed to one ex-
ecuting unrecorded mortgage, covering inter-
ests of both minor ward and her mother in
purchase price, had "implied actual notice"
of mortgage.
BROWN, JT, dissenting.


Appeal from Circuit Court, Dade County;
Ira A. Hutchison, Judge.
On rehearing.
Decree appealed from reaffirmed.
For original opinion see 141 So. 124.
Redfearn & Ferrell, Semple & Hirschman,
and T. J. Dowdell, all of Miami, for appel-
lants.
Shackleford, Ivy, Farrior & Shannon, of
Tampa, and Evans & Mershon and 0. B. Sim-
mons, Jr., all of Miami, for appellees.


DAVIS, J.
On April 19, 1032, the final decree appealed
from in this case was affirmed by a ma-
jority of this court, one justice dissenting
and one justice not participating. See Sapp
v. Warner (Fla.) 141 So. 124. Thereafter
a petition for rehearing was filed by the ap-
pellants. Rehearing was granted and argu-
ment had before the court en bane. The
case is now before us for disposition on re-
hearing.
The petition for rehearing takes exception
to certain portions of the court's opinion,
wherein it is alleged there was an errone-
ous statement of some of the facts. For
the purpose of correcting any such errone-
ous statement of the facts, the following
restatement of them is now made:
A man named Patterson died in Dade coun-
ty over twenty years ago, leaving his widow
and a minor daughter surviving him. At the
time of his death he owned title to the lands
involved in this foreclosure suit. A Dr. Jack-
son of Miami was appointed guardian for
the minor child by the probate court of Dade
county. Thereafter, the guardian filed a pe-
tition for leave to sell real estate in which
the minor child had an interest, which leave
was granted.
The order entered by the county judge au-
thorized the guardian to sell "all the right,
title, interest and claim of Annie Lester Pat-
terson, a minor," in the property in ques-
tion. The guardian reported that he had
sold the property to George E. Merrick for
$20,000, to be paid on the following terms
and conditions:
"Two Thousand Dollars ($2,000) cash and
Eighteen Thousand Dollars ($18,000) in five
(5) years, together with interest at the rate
of eight per cent (S%) per annum, payable
semiannually on all deferred payments; said
deferred payments to be secured by a pur-
chase money mortgage on said property,
which said sum was paid for the entire ti-
tle to the said property, two-thirds of which
the said Annie Lester Patterson, a minor,
is entitled to receive and will receive, and
the other one-third of the said Twenty Thou-
sand Dollars ($20,000) being paid to Jessie
B. Markley, formerly' Jessie B:. Patterson,
widow of Samuel L. Patterson and mother
of Annie Lester Patterson, a minor."
The county judge entered an order upon
the foregoing report of sale and confirmed
it. This order contained a provision which
read as follows:
"That James M. Jackson in his capacity
as guardian of Annie Lester Patterson, a
minor, be and he hereby is authorized and
empowered to execute and deliver a deed
of conveyance to the said George E. Merrick,
conveying all of the right, title-and inter.


=For other cases see same topic and KEY NUMBER in all Key Nunxber Digests and Indexes
*For opinion denying motion to recall mandate, see 144 So. 48S1


648 Fla.








SAPP v. WARNER
143 So.


est owned by the said Annie Lester Patter-
son, a minor, in and to the above described
property and to take back a purchase mon-
ey mortgage constituting a first lien against
the property for all deferred payments."
Pursuant to this order a single deed was
executed by Jackson as guardian, joined by
the widow, Mrs. Markley, and her husband.
This single joint deed was made and de-
livered to George E. Merrick as grantee. In
exchange, therefore, Merrick paid the $2.000
in cash and executed and delivered one note
payable to James M. Jackson, Jr., as guard-
lan of the estate of Annie Lester Patter-
.son, a minor,-for $12,000 payable five years
after date, and another note payable to Jessie
B. Markley for $6,000, maturing on or be-
fore five years after date.
To secure both and each of said purchase
money notes, Merrick executed one purchase
money mortgage to James M. Jackson, Jr.,
as guardian of the estate of Annie Lester
Patterson, a minor, and Jessie B. Markley,
individually. This was in literal compliance
with the order of the court which had au-
thorized delivery of the deed upon the tak-
ing back of a purchase money mortgage to
secure "all deferred payments."
This original purchase money mortgage
was misplaced and never filed for record.
Thereafter, in order to evidence the terms
and conditions of the misplaced mortgage,
Merrick executed two mortgages, each dated
August 4, 1923, each acknowledged Septem-
ber 30, 1926, identical in their terms, one
of them being executed to James M. Jack-
son, Jr., as guardian of Annie Lester Pat-
terson, a minor, and the other being exe-
cuted to Jessie B. Markley, individually.
The bill of complaint alleges and the lower
court in effect found that the execution of
these two subsequent mortgages was in or-
der to evidence the terms and conditions
of the misplaced single mortgage which had
originally been executed for the purpose of
securing "all deferred l;ayments" on the land
which Merrick was purchasing from Annie
1ester Patterson, a minor, and Jessie B.
Markley, individually, as joint grantors.
The original purchase money notes were
ntt paid at their maturity. In the mean-
time, Annie Lester Patterson had become of
ade and married Fred W. Warner. In con-
s'luence of the nonpayment of the notes,
Jessie B. Markley, the widow, and Annie
I.~-ter Patterson, instituted suit for fore-
eisure of the original purchase money mort-
gaBe.1
While the new mortgages which had been
etxcutted by Merrick, as hereinbefore stated,

'TrMt were married when the suit was brought,
L: their husbands were joined therein as parties
": ,lainant, the guardian for the minor having in
"'. tn:ntime made his accounting and been die-
143 O-41d.
143 SO.--4l1


were referred to in the bill for foreclosure,
it is specifically shown that they were so re-
ferred to only for the purpose of evidencing
the terms of the original mortgage as a basis
for its re-establishment and foreclosure.
All of the defendants in the foreclosure
case claim interests in the property through
George E. Merrick. George E. Merrick in
turn acquired his fitle through the deed
which had been executed on behalf of the
minor by her guardian, joined in by Mrs.
Markley, and her husband.
The answers of the defendants merely deny
the priority of complainants' claim to fore-
closure as against their respective interests.
No attempt was made by any of the defend-
ants in their pleadings to assert that the
two mortgages which had been subsequent-
ly executed by Merrick were given for any
other purpose than to evidence the terms
of the original mortgage. No question of
merger of the original mortgage, or of its
release, by reason of the execution and de-
livery of the two new mortgages was there-
fore presented by the pleadings on behalf
of the defendants.
Just before the trial the original unrecord-
ed mortgage was found. This mortgage up-
on being properly identified was thereupon
Introduced in evidence. The chancellor en-
tered a decree foreclosing the original mort-
gage and adjudged that the lien thereof was
superior to the claims and interest of George
E. Merrick, and each and 'every of the de-
fendants in the case, all of whom were
claiming under him.
The defendants appealed from this final
decree, which appeal resulted in the previous
affirmance of the decision of the lower court.
The chancellor held that, under the facts
and circumstances presented by the record,
defendants were charged with notice of the
existence of the unrecorded purchase-money
mortgage, and that the lien of such original
purchase money mortgage had not become ex-
tinguished because of the giving by Merrick
and the filing for record of the two subse-
quent evidentiary mortgages whose terms ap-
pear to be slightly variant from those of the
original mortgage. This court heretofore sus-
tained the chancellor in such findings. Our
further consideration of the case on rehearing
confirms our view heretofore expressed to
the effect that the chancellor was correct in
so holding.
[1, 2] No new purchase money notes were
ever given, but it appears that the debt which
was enforced through the decree of fore-
closure was the original purchase-money debt
evidenced by the original purchase-money
notes, which were required to be given un-
der the order authorizing the conveyance by
the guardian of the minor's title. The entire
transaction, so far as the minor was con


Fla. 649








143 SOUTHERN REPORTER


cerned, constituted a sale of the minor's real
property which, in order to be valid, was re-
quired to strictly comply with the order of
the court permitting and authorizing such
sale. The order authorized the guardian to
sell for money and to take a first lien pur-
chase-money mortgage to secure deferred pay-
ments. This being true, there could not have
been any ovation by the act of the guardian
alone without the further order of the pro-
bate court. Consequently, appellants' conten-
tions as to merger and ovation must fail, not
only because of this pertinent circumstance,
but for the additional reason that no such
question was raised or presented on behalf
of the defendants by their pleadings.
t3] The chancellor evidently found, and
this court in its first decision held, that the
guardianship proceedings, together with the
guardian's deed, constituted one single muni-
ment of title. The guardian's deed could not
lawfully have been executed and delivered
by the guardian without the execution and
delivery of the notes and first lien mortgage
evidencing and securing the unpaid purchase
money. Every assertion of the existence of
the guardian's deed and of its validity neces-
sarily includes an assertion of the existence
of the purchase-money notes and first lien
mortgage securing them, the existence of
which is indispensable to sustain the validity
of the guardian's deed.
1[4 The Chancellor found that notice to de-
fendants existed from the circumstances
shown of record, although the chancellor re-
ferred to this notice as "constructive notice"
Instead of "implied actual notice." The term
employed to denote it is not vital to the cor-
rectness of the chancellor's decision. It is the
fact of notice and not the name given to it
which is binding on the appellants. Law
writers and judges frequently refer to any
kind of imputed notice which is charged to
another by reason of circumstances binding
on him, whether actually known to him or
not, as "constructive notice." In a broad
sense the term "constructive notice" is fre-
quently used in a loose way to describe what
is in strictissimis verbis merely "implied ac-
tual notice."
In our previous opinion we pointed out the
difference which exists as a matter of law
between constructive notice and implied ac-
tual notice. We did not hold that the county
judge's records were constructive notice.
That point was particularly pointed out and
the distinction drawn between constructive
notice and implied actual notice as anlllied to
the facts of this case, but implied actual no-
tice is as much actual notice in law as ex-
press notice would be. Therefore, if actual
notice of the unrecorded mortgage would have
prevented the defendants from being bona
fide purchasers without notice, then such ac-


tual notice may be Implied as well as ex-
press.2
[5] One of the grounds for rehearing is that
"if the infant. Annie Lester Pattcrson War-
ner, must be protected due to infancy, that
the same reasoning does not apply to the
adult, Jessie B. Markley." The answer to
this contention is that the court has not held
that Annie Lester Patterson Warner should
be protected on account of infancy, but on the
ground that there was implied actual notice of
the unrecorded mortgage securing payment
of the purchase price of her interest by rea-
son of the fact that an examination of the
county judge's records comprising the chain
of title would have disclosed both the mort-
gage interest of the minor and the mortgage
interest of the adult.
Actual notice of both the mortgage interest
of the minor and the mortgage interest of the
adult is permissibly implied from the fact
that the chain of title discloses a guardian's
deed under which the defendants necessarily
have to claim part of their title at least. The
law presumes that as reasonably prudent pur-
chasers of property they examined the pro-
ceedings which were had, and which were
necessary to support the validity of the guard-
ain's deed conveying the interest of the minor
in the property.
It would have been absolutely impossible
under the facts of this case for the records
to have been examined by any one without
his learning of the mortgage which was re-
quired to be taken by the guardian to secure
the unpaid purchase price for the land, cov-
ering the adult's as well as the minor's inter-
est in such purchase price. The guardian's
report affirmatively showed that the property
was intended to be sold and was sold in
solid. The plan of sale was plainly shown
to be that the entire title should pass by a
deed from the guardian and the adult, and
that the interest of both when conveyed
should be incumbered by a first lien purchase-
money mortgage back to them securing the
payment of the unpaid purchase price.
The chancellor passed on the question of
actual notice as a question of fact. He was
warranted in finding that implied actual no-
tice of the unrecorded mortgage-existed- a,
a matter of fact from the circumstance that
an examination of the guardianship proceed-
ings must necessarily have disclosed the ex-
istence of the unrecorded mortgage sought to
be foreclosed.
The case is a hard case, it is true. Some
one must lose. The chancellor held in effect
that, if any one was negligent, it was the de-
fendants who failed to examine the guard-

SThe holding In Rambo v. Dickenson, 92 Fla. 78,
110 So. R. r-2 is in entire harmony with this view
if Implied actual notice is the legal equivalent of
express actual notice, as we hold that t is.


650 FIa.









HARRINGTON v. BOWMAN
143 So.


iannhip proceedings, though the mortgagees
were likewise negligent in not recording the
purchase-money mortgage which they took to
secure the unpaid purchase price. No circum-
stance was shown undertaking to excuse the
defendants from their failure to examine the
guardianship proceedings. Had the guardian-
ship records been lost or destroyed, or other
circumstance of that kind been made to ap-
pear, the chancellor might have been pre-
cluded from finding as a fact that there was
implied actual notice of what the guardian-
ship proceedings showed. But in the ab-
sence of such proof, the chancellor was en-
titled to indulge the presumption that the
guardianship records being in existence, and
open for inspection, were actually examined,
and being so examined that knowledge of the
facts they disclosed was ascertained by the
defendants, and that, therefore, the defend-
ants took their' title with knowledge of the
unrecorded purchase-money mortgage out-
standing against it in favor of the appellees.
It follows from what has been said that
the chancellor properly entered a decree of
foreclosure in favor of the appellees, and that
our previous decision affirming such decree
should be readopted and adhered to on this
rehearing.
It is therefore ordered that the decree ap-
pealed from be reaffirmed on rehearing.

BUFORD, C. J., and WHITFIELD, J., con-
cur,

SELIS, J, agrees to denial of rehearing.

BROWN, J., dissents.

TERRELL, J., not participating.





HARRINGTON v. BOWMAN et al.

Supreme Court of Florida, Division B.
July 6, 1932.
Rehearing Denied Oct. 1, 1932.
I. Evidence C82.
Presumption exists that order denying
motion to amend sheriff's return was correct.
2. Appeal and error =544(1).
Order denying motion to amend sheriff's
return could not be considered, in absence of
bill of exceptions demonstrating that pre-
sumption that order was correct had been
overcome.
3. Judgment =237(1).
Judgment cannot be taken against less
than all defendants sought to be held joint-


ly liable, unless statute is strictly complied
with, or unless personal defense is interpos-
ed (Comp. Gen. Laws 1927, I 4496).

4. Judgment 0=*262.
Waiver of absence of third defendant
sued jointly could not be imputed to defend-
ants from bare fact of their joinder of issue
or from their failure to affirmatively object
prior to time of filing motion in arrest of
judgment (Comp. Gen. Laws 1927, If 4496.
449S, 4500, 4501).

5. Appeal and error C=913.
In absence of bill of exceptions showing
what occurred before or at time of trial, pre-
sumption existed that defendant did not
waive objection to absence of third defend-
ant sued jointly (Comp. Gen. Laws 1927, 5
4496).

6. Dismissal and nonsuit =59.
"Discontinuance" of common-law action
Is similar to "nonsuit."
A discontinuancee" of a common-law
action is similar to a nonsuit, and occurs
whenever the plaintiff leaves a chasm in
the pleadings or proceedings of his cause,
as by not continuing the process, or by
not proceeding regularly as he ought to
do, whereby his suit is by operation of
the common law to be regarded as dis-
continued.
[Ed. Note.-For other definitions of
"Discontinuance" and "Nonsuit," see
Words and Phrases.]

7. Dismissal and nonsuit 0-59.
Discontinuance as to one of-several Joint
defendants is, at common law, discontinuance
as to alL

8. Dismissal and nonsult @59.
Where discontinuance appears on face of
record in pleadings or proceedings before
court, it may be reached by demurrer before
verdict.
9. Judgment @-262.
Discontinuance which is evidenced by
verdict may be reached by motion in arrest
of judgment.

10. Dismissal and nonsuit =59.
Action of plaintiff in proceeding to trial
with only two of three joint defendants serv-
ed, where action was brought as joint action,
though note sued on was joint and several,
constituted discontinuance as against defend-
ant not served and required dismissal of
whole case (Comp. Gen. Laws 1927, i 4496).
This was so, in absence of showing of
compliance with Comp. Gen. Laws 1927, 5
4496, permitting plaintiff to proceed
against defendants served.
BROWN and ELjIS, JJ., dissenting.


4=IFor other cases fe same topic aud KIY NUMBER in all Key Number Digests and Indeae


Fla. 651







SAPP v. WARN`R
144 So.


Fla 481


sure decree until after sale and confirmation
Fannie RIVERS, a Widow, Plaintiff In Error, v. thereof.
CITY OF GAINESVILLE, a Municipal Cor. 5 Mortgages =579.
portion under the Laws of the State of Flor- Equity court may entertain appropriate
Ida, Defendant in Error. proceedings, directly relating to enforcement

Supreme Court of Florida. of mortgage foreclosure decree by sale, even
after appellate court's affirmation thereof, for
v. 4 19 purpose of doing equity between parties.

En Bane. 6. Mortgages =579.
Court rendering mortgage foreclosure de-
Error to Circuit Court, Alachua County; cree may entertain appropriate supplemen-
A. V. Long, Judge. tary proceedings after its affirmance for re-
Fred J. Hampton and B. F. Jordan, both demption therefrom under special covenants
of Gainesville. for plaintiff in error, before sale, unless such question was express-
Baxter .& Clayton and W. B. Watson, Jr, ly or impliedly decided adversely therein.
All of Gainesville, for defendant in error. 7. Mortgages 4=>579.
Recall of niandate affirming mortgage
PER CURIA3. foreclosure decree held unnecessary to permit
A rehearing having been granted in this lower court to decide whether appellants may
cause, and the court having further con- redeem therefrom because of special equities
sidered the record herein after the filing of rendering sale as originally ordered inequita-
additional briefs and after oral argument ble.
by counsel for the respective parties, and the
court being now fully advised in the prem- 8. Equity =437.
ises, it is considered, ordered, and adjudged Equity court may stay, modify, or direct
1by the court that the opinion filed in this manner of enforcement of its decree, to pre-
cause on July 23, 1932 (143 So. 235), be ad- vent miscarriage of justice, or alter method of
hered to, and that the judgment of the cir. enforcement to accord with special equities
cult court be, and the same is hereby, re- subsequently arising.
versed after rehearing and reargument. 9. Equity C>437.
Equity court's power to stay, modify, or
BUFORD, C. J., and WHITFIELD, EL. alter method of enforcing its decree depends
LIS, BROWN, and DAVIS, JJ., concur, on demonstration of special equity entitling
party to such relief in order to prevent mis-
TERRELL, J., not participating, carriage of justice.

10. Equity =437.
Chancery court, in altering method of en-
forcement of its decree to prevent miscarriage
of justice, does not act as court of errors to
examine or reverse decree, but treats all pre-
vious proceedings as valid.


SAPP et al. v. WARNER et al.

Supreme Court of Florida, Division B.
Dec. 2, 1932.

1. Appeal and error -=1.
Appeal in equity is but a step in cause.
2. Mortgages 0-579.
Attirmation of final mortgage foreclosure
decree on appeal is conclusive as to complain-
ant's right to enforce lien by sale for amount
of decree as affirmed.
3. Mortgages C=497(1).
Foreclosure enforces mortgage as against
all defenses which were or might have been
asserted before entry of final decree.
4. Mortgages =499.
Equity court retains jurisdiction to do
equity in enforcement of its mortgage foreclo-


II. Mortgages e=579.
Foreclosure of lost mortgage on basis of
pleaded evidentiary mortgages, not corres-
ponding with original mortgage, subsequently
found, as to certain special cotefidnats,'author-
ized court to permit redemption of property
from decree under such covenants even as
against rights asserted under appellate
court's mandate affirming decree.


Appeal from Circuit Court, Dade County;
Ira A. Hutchison, Judge.
On motion to recall a mandate of the Su-
preme 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.


=F'nor other cases see smIe topic and KEY NUMBER in all Key Number Digests and Indexes
144 SO.-31




r- -... -- .. ..,.... .. -_ a ~.. --- -. :~..i~r-


144 SOUTHERN REPORTER


Redfearn & Ferrell, Semple & Ilirschman,
and T. J. Dowdell, all of Miami, for appel-
lants.
Shackleford, Ivy, Farrior & Shannon, of
Tampa, and Evans & Mershon and 0. B. Sim-
mons, Jr., all of Miami, for appellees.

PER CURIAM.
[1-3] 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 foreclo-
sure 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 defens-
es that were asserted, or that might have been
asserted by the defendants by appropriate
pleadings prior to the entry of the final de-
cree adjudicating the foreclosure.
[4, 5] But a court of equity at all times re-
tains jurisdiction to do equity in the enforce-
ment of a foreclosure decree rendered by it,
until after a sale under it is made and con-
firmed. 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


Ing to adjudicate or decide whether or not
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 appel-
lants 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 mandate from con-
sidering and deciding, on equitable princi-
ples, whether or not the appellants should
be now permitted to redeem their individual
properties from the foreclosure decree, by
reason of the special and peculiar equities
which may exist, that would render the execu-
tion of that decree by foreclosure sale as
originally ordered, unjust and inequitable.
This is a different proposition from author-
izing the reopening of the final decree itself
In order to permit a covenant for partial re-
leases to be pleaded as a matter of right, by.
way of defense.


enforcement of the decree by sale. And this [8] The proposition we decide now is sim-
is true, even after affirmation of the final de- ply that a court of equity, having jurisdiction
cree of foreclosure by an appellate court. See at all times over the enforcement of its own
authority hereinafter cited. decrees, until they have been actually execut-
ed, may stay or modify, or may direct, the
[6] This permissible procedure includes the enforcement of its decrees in a particular
right of the court below, after mandate af- way, when necessary to prevent a miscar
firming a foreclosure decree is lodged with t, y, e cessary o prevent a mscar-
firming a forecosure decree is lodged with it,, riage of justice, or may alter the method of
to entertain on the basis of special and pecull- enforcement in order to accord with special
ar equities asserted, appropriate supplemen- and peculiar equities which have arisen. /
tary proceedings filed by the defendants in the \
cause, having for their object the securing of 19] Such special and extraordinary powers
an equitable right to redeem their lands from of the court, being vested in it solely for the
the decree itself prior to actual sale, in order purpose of preventing inequitable conse-
to allow the defendants to have the benefit of quences from following the enforcement of
a covenant for partial releases imposing a du- an admittedly proper decree, cannot be in-
ty to permit partial redemption that is in evoked as a matter of right, but must depend
equity and good conscience still binding on upon the demonstration of some special and
the mortgagee, unless that question was ex- peculiar equity which, when established or
pressly or impliedly adversely decided in the admitted, would give rise to a right to have
final decree itself, so that such equitable claim the enforcement of a decree altered, upon
may be said to have become concluded by the such terms and conditions as the court may
affirmance of the final decree, determine should be complied with by the pe-.
[7] Our affirmance of the final decree of titioner, in order to do equity on his part, so
foreclosure in this case (see Sapp v. Ware as to prevent a miscarriage of justice on ei-.
foreclosure in this case (see Sapp v. Warner,
141 So. 124; Id., 143 So. 64S) was not intended their side by the requirement of an inequita-
ble thing, merely because it had originally
by this court to foreclose or cut off any spe-be ere ecae
I, ,, .... VI l *i ll., ,,rC~ been decreed that way.


cla orV p llecu ar La es eI apple ans mlgl
have obtained by reason of such aflirmance,
to redeem their individual properties accord-
ing to special covenants which may still be
binding on the mortgagee in a court of con-
science. So, without at this time undertak-


[10] A court of chancery, in granting re-
lief of the kind just mentioned, does not act
as a court of errors to examine or reverse
its previous decree, but it treats all the pre-
vious proceedings as valid, and, acting on


482 Fla.


;n~-r-~--u.c i, -* nrma:m~aa~:.







HATTEN v. HAYNES
144 So.


special and peculiar equities made to appear,
grants relief to the petitioner against the
consequences of enforcing the decree itself
as rendered, when, under the circumstances
shown, the rights acquired by the opposite
party under that decree cannot be retained
by him in good conscience, exactly as grant-
ed. For the theory upon which the exercise
of such powers by equity courts rests, see
Bank of Kentucky v. Hancock, 6 Dana (Ky.)
284, 32 Am. Dec. 76.
We conclude that the recall of the man-
date, as applied for by the motion now before
the court, is not necessary to enable the mov-
ants to present and have considered an ap-
propriate petition seeking to obtain the ben-
efit of equities which may have arisen in
their behalf by virtue of the decree of this
court affirming the enforceability of the
mortgage that was lost when the pleadings
were made up. And, without expressing any
opinion whatsoever on the merits of mov-
ants' claim as referred to in the proceedings
now before the court, we construe our own
opinion, and our own judgment and mandate,
as having been intended not to operate to
the prejudice of appellants' right to have a
claim such as they seek to have adjudicated,
considered on its merits, according to equita-
ble principles which may justly control its
final disposition.

[IIl While there was no fraud committed
by the appellees, either actually or construc-
tively, in obtaining an affirmance of the final
decree appealed from, yet the pleadings on
appellees' part shown in the transcript did
not truly represent the real mortgage which
was actually foreclosed. The real mortgage
was lost when the original bill for foreclo-
sure was filed. Nevertheless, the relief was
granted on a bill brought to foreclose the
original mortgage on the basis of certain evi-
dentiary mortgages pleaded, which, as de-
veloped later, when the original mortgage
was found, did not correspond in all respects
with the original mortgage as to certain spe-
cial covenants. We think this peculiar cir-
cumstance brings the present situation with-
in the spirit and intent of the rule followed
in Bank of Kentucky v. Hancock, supra,
which was to the effect that relief might be
granted even as against rights asserted un-
der an appellate court's mandate, when equi-
table considerations require it.
Motion to recall mandate denied, without
prejudice to consideration of appropriate
proceedings in court below.

WHITFIELD, P. J., and TERRELL and
DAVIS, JJ., concur.

BROWN, J., concurs in the opinion and
judgment.


175 La. 743
HATTEN v. HAYNES et al.

In re HATTEN.
No. 31975.

Supreme Court of Louisiana.
Oct. 31, 1932.

1. Certiorari e=60.
Plaintiff's failure to annex copy of de-
fendants' exceptions, or to attach reasons of
Court of Appeal, for refusing rehearing, held
not to warrant dismissal of writ of certiorari
or review (Supreme Court Rule 13, 5).
Plaintiff's failure to annex copy of de-
fendants' exceptions to application for
writ of review or certiorari, or to attach
reasons of Court of Appeal, if reasons
were given, for refusing rehearing, as re-
quired by Supreme Court Rule 13, 5,
did not warrant dismissal of writ of cer-
tiorari or review after it had been issued,
since requirement is for convenience and
information of Supreme Court, so that it
might readily determine whether the case
should be ordered up for decision, and
since no issue based on the omitted ex-
ceptions could be raised before the Su-
preme Court, and no written reasons for
refusing a rehearing were furnished by
the Court of Appeal.
2. Master a"d servant =367.
Person engaged by contractor to affix
channel irons and lathing for plastering held
"independent contractor" and not "employee,"
within Workmen's Compensation Act (Act No.
85 of 1926, p. 111, 3, par. 8).
Lessee of building for mercantile pur-
poses engaged contractor to make certain
alterations and repairs at an agreed price,
the contractor to furnish labor and ma-
terial for all lathing, plastering, and con-
crete work called for by the plans and
specifications. The contractor in turn en-
gaged the plaintiff to affix channel irons
and lathing for plastering; the plaintiff
agreeing to do the work, furnish the nec-
essary labor and material, for a stipulated
price.- Plaintiff was not controlled in any
manner by the contractor, but responsible
to contractor only for the results of his
work. After completing the work, some
minor defects developed, whereupon
plaintiff upon request returned to remedy
the defects, and, while doing so, fell from
a scaffold and broke his right arm.
[Ed. Note.-For other definitions of
"Employd" and "Independent Contractor,"
see Words and Phrases.]
3. Master and servant C-367.
Fact that compensation claimant person-
ally did manual labor held insutlicient to ex-


4l=For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes


La. 483


t




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