"The rule of procedure in giving deficiency decrees does not belong to a court of equity, unless specifically *Page 1349 conferred by statute or a rule of court." Johnson v. McKinnon, 45 Fla. 388, 34 So. 272.
"In the absence of a statute, or rule of court made in compliance with law, no decree in chancery for a deficiency, after a sale of the mortgaged property could be entered in a court of equity, unless it be that the debt, without the mortgage, is such that a court of chancery would have jurisdiction of it, and could render a decree for it." Webber v. Blanc, 39 Fla. 224, 22 So. 655; 42 C.J. 290, 300.
Under Chancery Rule 89, adopted by legislative authority in 1873, a deficiency decree may be rendered in a mortgage foreclosure against the parties who are primarily liable for the mortgage debt when the proceeds of a sale of the mortgaged property are insufficient to pay the mortgage debt. Snell vs. Richardson, 67 Fla. 386, 65 So. 592.
If a deficiency decree be duly applied for and a consideration of the application be denied. Gober v. Braddock, ___ Fla. ___, 131 So. 407, or if no application for a deficiency decree be made and no deficiency decree on the merits is rendered, an action at law may be brought for the deficiency; but if an application for a deficiency decree is duly made and entertained and a decree on the merits is rendered granting or denying it whole or in part a decree for the deficiency claimed, the decree becomes res adjudicata unless it is reversed or modified in appellate or other direct proceedings duly taken.
Chapter 7839, acts of 1919 extended the remedy by deficiency decrees to all suits to foreclose mortgages or to enforce other liens and against all parties liable for the mortgage debt or the lien debt. Chapter 12325, Acts of 1927, expressly repealed Chapter 7839, Acts of 1919.
Chapter 11993, Acts of 1927, recognizes the authority *Page 1350 of the circuit judges to render deficiency decrees in mortgage foreclosures in equity (presumably under Chancery Rule 89, since Chapter 12325, Acts of 1927, repealed Chapter 7839, Acts of 1919) and provides that "the entry of a deficiency decree for any portion of a deficiency should one exist, shall be within the sound judicial discretion of the court, but the complainant shall also have the right to sue at common law to recover such deficiency." The intent of this enactment is not to modify the rule of res adjudicata or to give to complainant in a mortgage foreclosure suit a right of action at law for a further recovery, should a deficiency decree be rendered for a portion only of the deficiency claimed; but the purpose of the act is to sanction the authority of the equity court, "within the sound judicial discretion of the court," to render a decree for "any portion of a deficiency, should one exist," and to recognize the right of the complainant "to sue at common law to recover such deficiency," if a deficiency decree is not denied or granted on the merits. An action at law would be to recover "such deficiency" not an amount in addition to that covered by the deficiency decree.
Chapter 13625, Acts of 1929, amended Chapter 11993, Acts of 1927, by adding a proviso that "no suit at law to recover such deficiency shall be maintained against the original mortgagor or mortgagors in cases where the mortgage is for the purchase price of the property involved and where the original mortgagee becomes the purchaser thereof at foreclosure sale and also is granted a deficiency decree against the original mortgagor or mortgagors." The quoted proviso merely enacts that an action at law shall not be brought to recover a deficiency where the original mortgagee purchases the property at *Page 1351 the foreclosure sale and a deficiency decree has been rendered against the original mortgagors in favor of the original mortgagee of a purchase-money mortgage. Without such enactment a deficiency decree for all or a part of the deficiency claimed in any case, would, upon becoming res adjudicata, bar an action at law to recover any portion of the deficiency claimed whether that claimed be included in the deficiency decree or not.
A complainant in mortgage foreclosure proceedings may bring an action for the balance due on the mortgage debt after applying the proceeds of the mortgaged property sold, or such complainant may invoke the equitable remedy by deficiency decree under the statute; but the latter remedy is invoked subject to the limitation contained in the statute and subject to applicable rules of res adjudicata; and if the decree on the merits rendered on an application for a deficiency decree is not satisfactory it must be reviewed by direct proceedings or it becomes res adjudicata. In this case the complainant asked for a deficiency decree and obtained a decree for a portion of the amount claimed. As the decree so rendered was not reviewed by appeal or other permissible direct proceedings, such decree became res adjudicata.
DAVIS, J., concurs.