This cause has been before this Court in its many angles for a number of years. Five opinions have been handed down deciding the issues presented. It would, therefore, seem futile to again refer to the many authorities cited in the former opinions, or to, *Page 681 at any length, recite again the history of the cause. Suffice it to say, that in the year 1932, Bula E. Croker filed her bill for the cancellation of a trust deed formerly executed by herself and husband to one McDonald, together with a contract of sale in which was incorporated an option to purchase. To this bill Palm Beach Estates filed an answer seeking specific performance of the contract. Palm Beach Estates at that time holding the title to the lands by deed from McDonald and the contract as the assignee of McDonald. Palm Beach Estates treating their answer as a cross bill prosecuted its suit to enforce the contract of sale, and elected to exercise its option to purchase. Motion to strike and exceptions to this answer were overruled by the Chancellor, and such ruling affirmed by this Court.
Croker v. Palm Beach Estates, 114 So. 2d 225.
By virtue of the terms of the option Palm Beach Estates was required to, and did, tender into Court the sum of $529,466.00, first payment on the lands. Because of the failure of the Bank in which this tender was deposited the sum of $217,000 was lost. The question then arose as to who should sustain the loss. In determining this question the Court held that the loss fell upon Palm Beach Estates. The amount remaining in the Registry of the Court as a tender was the sum of $321,104.73. Upon final hearing of the cause the Chancellor entered a final decree dated August 21, 1929, finding the equities to be with Palm Beach Estates, decreeing that Bula E. Croker specifically performed, and that Palm Beach Estates pay to Mrs. Croker the sum tendered, to-wit: $529,466 without deduction for the loss of the $217,000 occasioned by failure of the Bank, and to deliver the notes endorsed as required by the contract of sale and purchase — in other words, granting the prayer of the answer or cross bill of said Palm Beach Estates. This decree *Page 682 was appealed from, and this Court, by opinion of August 31, 1932, affirmed the same but directed a modification of said decree to the extent that Palm Beach Estates be relieved from the payment of certain interest which had accumulated,
"We are, therefore, of the opinion that Appellants' contention with regard to an abatement of the interest which accrued on the agreed purchase price pendente lite are well taken, and that decree should be modified to accord to such Appellants the benefit of such an abatement when complying with the decree,"
and further that the Appellants, Palm Beach Estates, should be permitted to give notes and security not as of the date of the original tender, October 15, 1924, but as of the date of the final decree, August 21, 1929.
Palm Beach Estates v. Croker, 143 So. 2d 792.
On the 17th of November, 1932, the Chancellor entered an order modifying the final decree in exact compliance with the mandate of this Court. So it was that again the movant for specific performance on the part of Bula E. Croker was granted the relief prayed for, and this Court having affirmed the court below upon the merits of the cause and reversed only as to the findings of certain amounts, at the same time giving specific directions as to how the decree should be modified. The only question that could be determined by this Court upon appeal from such modified decree was, did the final decree as modified conform to its mandate.
The contract entered into between the Crokers and McDonald provided a right in McDonald under which he might become the purchaser of the property, also authority to convey title to the land which he might sell. The Crokers at the same time conveyed this land to McDonald, who in *Page 683 turn deeded the lands to Palm Beach Estates, Mrs. Croker having parted with the fee simple title to her land had left only an equity which gave her the right to an accounting from McDonald for the price of such lands as he (McDonald) might convey, or in the event the option was exercised. The equity then consisted of the right to receive the purchase money. There can be no question but that Palm Beach Estates and McDonald were the actors in a suit for specific performance against Mrs. Croker, and the counterclaim was in the nature of an independent suit in equity seeking such relief.
The Court, on August 21, 1929, settled the equities in favor of Palm Beach Estates, and decreed that Mrs. Croker should specifically perform; that her rights were inferior to the rights of the counterclaimants to the lands in litigation, and that Bula E. Croker accept the sum of money which McDonald and Palm Beach Estates were ordered to pay on or before the day named in the decree.
"The amounts, the aggregate of which said defendants will pay as aforesaid to complainant, Bula E. Croker, and the amounts, the aggregate of which said complainant is hereby decreed to accept are as follows:
"Five hundred twenty-nine thousand, four hundred sixty-six dollars ($29,466.00) being an amount equal to the sum which was paid by the defendants into the Registry of the Court on October 15, 1924, when the defendants exercised this option to buy the lands."
It was further decreed:
"The aggregate of the sum above recited having been tendered to complainant together with the note and mortgage pursuant to the terms of this decree, then the defendant, Palm Beach Estates, a corporation, is ordered, adjudged and decreed to be the absolute and indefeasible owner *Page 684 of the lands hereinbefore described, in fee simple, forever freed, exonerated and discharged from any and all liens, claims, demands, right, title and/or interest of the complainant, Bula E. Croker, and all persons claiming by, through, or under her in and to the said lands or any part or portion thereof, except the interest of complainant under said note numbered five, and the mortgage to secure same."
The purpose of the counterclaim was to compel Mrs. Croker to accept the money and that was the only thing the Court could require. The title to the property was already vested in Palm Beach Estates. Mrs. Croker had fully performed and she because then and there, of the date of the decree, entitled to receive the money remaining in the Registry of the Court. Certainly her rights could not be affected by a subsequent default on the part of the movants for the decree.
"He who seeks equity must do equity."
The decree fixed a time for performance. It did not alter the contract of the parties, nor did it make a new contract. The contract had been merged into the decree and the rights of the parties fixed and determined, and if Palm Beach Estates sustain a loss because of their default, then it can only be due to their refusal to do equity, for upon their representation that they were willing and able to perform did they successfully prosecute the suit, which in the end required Mrs. Croker to specifically perform. Can it be for a moment contended that because Palm Beach Estates have failed and refused to perform the decree sought by them and entered in their behalf, thereby sustaining a loss, that it is the fault of Mrs. Croker. Bula E. Croker occupies the position in this suit of one not wishing to sell her equity in the land, but is required by a decree of the Court to do so, and to accept the purchase price agreed upon. *Page 685 The question of her damage has nothing to do in this cause. The money in the Registry of the Court was and is a part of the purchase price, and the title and ownership of the money passed to Mrs. Croker under this decree entered in the suit prosecuted by, and at the instance of Palm Beach Estates.
The case of Taylor v. Rawlins, cited so frequently in the Brief of Palm Beach Estates, is not a parallel case. Bula E. Croker is not in the position of one, who upon default of his vendee, takes possession of the land, and then retaining the purchase money paid on account brings suit to remove the contract as a cloud upon his title. But the Appellants Palm Beach Estates as vendees having paid a part of the purchase price and obtained a decree requiring the vendor to perform, find that it has made a bad bargain, and undertakes to recover the money paid.
"No rule in respect to the contract is better settled than this: That the party who has advanced money, or done an act in part performance of the agreement, and then stops and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed and fulfill all his stipulations according to the contract, will not be permitted to recover back what has thus been advanced or done."
"While forfeitures are not favored either in law or equity, it is equally true that neither law nor equity favors the negligent, nor do they hold out a premium to the careless, or one who shows anything else than a prompt and ready disposition to comply with his undertaking."
Realty Security Corporation v. Johnson, 111 So., page 536.
It appears from the record that the mandate of this Court affirming the decree of August 21, 1929, but modifying same, was dated October 28, 1932, and recorded October *Page 686 31, 1932; that upon the same day Bula E. Croker filed her acceptance of the modified decree to be rendered in conformance with the mandate, which acceptance is as follows:
"Your Petitioner, Bula E. Croker, hereby voluntarily agrees to specifically perform the covenants, agreements and stipulations upon her part undertaken to be done and performed by the provisions of the contract of July 12, 1920, for the benefit of Palm Beach Estates, a corporation, and J. B. McDonald, and your Petitioner, hereby voluntarily accepts and agrees to accept the Five Hundred Twenty-nine Thousand Four Hundred Sixty-six Dollars ($529,466.00) paid to the Clerk of this Court or into the registry of this Court, or so much thereof as now remains, as part payment, and the other moneys to be paid and the notes and mortgage tendered as fixed, directed and decreed by the opinion of the Supreme Court herein and as will be fixed and decreed by this Court in accordance therewith by its modified and final decree.
"Petitioner voluntarily agrees for this Court to enter its final, modified decree as above stated; that said Palm Beach Estates be decreed to be the absolute and indefeasible owner of the lands described in the Counterclaim, in fee simple, forever free, exonerated and discharged from any and all liens, claims and demands, right, title, and/or interest of your Petitioner, Bula E. Croker, and of all persons claiming by, through or under her in or to said lands or any part or portion thereof except the purchase money mortgage from defendants to your Petitioner, complainant, herein.
"And your Petitioner prays that the Clerk of this Court pay to her the moneys now in his hands as aforesaid or in the registry of this Court and that the Court direct all things to be done in the premises that are meet and proper by virtue of this Acceptance and Petition and of the opinion *Page 687 and decree of the Supreme Court of Florida and the mandate thereof now on file in this Court.
"BULA E. CROKER, "Petitioner and Complainant."
Thereafter Palm Beach Company on November 14, 1932, filed its petition to intervene, claiming the money in the registry of the Court. On November 26, 1932, at a hearing upon this petition, Palm Beach Estates read to the Court and had incorporated in the record a resolution of its Board of Directors, to-wit:
"Whereas, the Palm Beach Estates, in its litigation with Mrs. Bula Croker, tendered into Court the sum of Five Hundred Twenty-nine Thousand, Four Hundred Sixty-six Dollars ($529,466.00); and
"Whereas, said sum was tendered in good faith by the Palm Beach Estates for the use and benefit of Mrs. Bula E. Croker; and
"Whereas, a portion of said sum was lost in the failure of the Farmers' Bank Trust Company but there is still in Court of said sum approximately Three Hundred Twenty-one Thousand Dollars ($321,000.00); and
"Whereas, the said Bula E. Croker has formally accepted said sum and now claims the right to have it paid to her; and
"Whereas, the Palm Beach Company is seeking to intervene for the purpose of contesting her right and claiming the right to take down said sum from the registry of the Court and claims to have an assignment of said sum from Palm Beach Estates; and
"Whereas, the assignment made by the Palm Beach Estates to the Palm Beach Company was expressly made subject to the rights of Mrs. Bula E. Croker; and
"Whereas, the Palm Beach Estates now feels the said sum *Page 688 remaining in the registry of the Court is the money of Bula E. Croker and is not the money of the Palm Beach Company, THEREFORE,
"BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE PALM BEACH ESTATES: That said Palm Beach Estates go on record as being opposed to the Palm Beach Company withdrawing said sum in the registry of this Court and as insisting that the money be paid to or held for the benefit of Mrs. Bula E. Croker.
"BE IT FURTHER RESOLVED: That our attorney, Mr. C. D. Blackwell, convey to the Court the substance of this resolution and the attitude of the Palm Beach Estates with respect to the said sum of money now in the registry of this Court and the willingness of Palm Beach Estates and J. B. McDonald to comply with the amended decree of the Court entered November 17, 1932.
"There being no further business, the meeting adjourned.
"CORRECT:
"EWING GRAHAM, Vice-President."
This petition of intervention was disposed of by this Court, speaking through Mr. Justice BUFORD, in affirming the order of the Chancellor dismissing the petition and at the same time holding that the Palm Beach Company showed no title or lien against the fund in the registry of the Court, and that the original Complainant and Defendants are satisfied with the final modified decree.
146 So.2d Page 230.
On February 17, 1933, Palm Beach Company filed its second claim to the money in the registry of the Court, and this Court again affirmed the Chancellor's order of dismissal, holding that the terms of the mortgage did not incumber the money; and further that *Page 689
"Although she has lost in the litigation, she has nevertheless become entitled to a fund in Court which has accrued to her as a part of the initial payment for her land. But that fund was ordered paid to her, not because she won, but by reason of the fact that she lost her case, and the adversary parties defaulted after decree."
Speaking further of the money deposited, this Court said:
"Mrs. Croker has now become its owner under a decree entered against her in the specific performance suit by reason of the fact that the other parties defaulted in complying with such decree."
It appears from the record that, after Bula E. Croker had filed her acceptance of the fund, thereby expressing her willingness to abide the final modified decree, several parties with claims against Mrs. Croker, and claiming an interest in the fund applied for and were permitted to file their petitions of intervention which were not contested by Mrs. Croker.
It does seem that after the entry of the final decree, the final modified decree, and the several holdings of this Court in no uncertain language that the sum tendered and deposited was a part of the purchase price, and that Mrs. Croker had become its owner under a decree entered against her, and both parties, complainants and defendants, had expressed their willingness to comply with said final modified decree, that this litigation should have ended. But, we find further from the record that almost five months after having signified its willingness to comply with the final modified decree, and after having stated in its resolution that the sum remaining in the registry of the Court is the money of Bula E. Croker, Palm Beach Estates filed a petition and amended petition claiming the moneys in the registry of the Court because of the depreciation in the *Page 690 value of the lands, because of their inability to borrow money to pay for same, and alleging that Mrs. Croker had clouded the title to said lands. Which petition on motion was stricken by the Chancellor on the 9th day of May, 1933. This petition is a pleading unknown to the practice in this State. It cannot be treated as a bill of review or in the nature of a bill of review. Every matter alleged in the petition was known, or by the exercise of reasonable diligence could have been known to Appellants at the time of, and prior to the entry of the modified decree. The record is silent as to any of these matters being newly discovered and not known to Appellants at the time of entry of the modified decree. It is but an effort to alter and change a decree by alleging new matter without showing that the new matter alleged was not known to Appellants when the modified decree was entered, or could not have been known to them by the exercise of reasonable diligence, which under the ruling of this Court, is not permissible.
Stribling v. Hart, 20 Fla. 236.
Certainly the Appellant had knowledge of the decrease in the value of the lands on November 28, 1932, when their acceptance of the modified decree was filed. Certainly Appellant had knowledge, and it is clearly shown that every lien, conveyance or mortgage, claimed to constitute a cloud on the title (which at that time was not vested in Mrs. Croker), was a matter of record. Yet with full knowledge of all these matters Appellants filed their acceptance of the decree entered in their favor and thereby expressed their willingness and ability to perform its terms; by its resolution asked the Court to pay the money over to Mrs. Croker or to hold it for her benefit, stating in no uncertain terms that they felt that the money there remaining in the registry of the Court was the money of Bula E. Croker. *Page 691 Further than that, Appellant was a party to two appeals in this Court by Palm Beach Company and remained silent thus acquiescing in a judicial determination that the money in the registry of the Court was the property of Bula E. Croker. Justice will not permit a party litigant to approbate and reprobate in the same cause of action. Justice will not permit a party to a cause to approbate a decree, and by so doing admit that it is just and valid, and then subsequently upon finding that for some reason he cannot perform, reprobate the decree for no other purpose than to be relieved of his obligation under the decree.
Following the filing of this petition and on May 9th, 1933, Palm Beach Estates by its Board of Directors passed another resolution to the effect that since the enactment of the resolution filed November 26, 1932, stating that the money was the property of Bula E. Croker, that "the outstanding differences between these corporations have been settled and adjusted upon terms mutually satisfactory to said Palm Beach Company and to said Palm Beach Estates" "and to take such steps as the attorneys may deem advisable to establish the said fund of $321,104.73 as the property of Palm Beach Estates and J. B. McDonald, or the property of either." The default of Appellants is admitted. They prosecuted the cause which resulted in a decree in their favor. They accepted the decree and signified their willingness to perform. The decree fixed and determined the status of Mrs. Croker as that of a vendor defendant to a specific performance suit who had fully and completely performed; it fixed and determined the status of Appellants as vendees who had prevailed in a specific performance suit, and who had partially performed and ordered that Appellants complete performance by paying the balance of the purchase money and upon default therein that their rights and equities be cancelled. *Page 692
As to the appeal from the modified decree the only question that could be determined by this Court is, did the final decree as modified conform to the mandate. This, for the reason that this Court affirmed the final decree entered by the lower court on the 21st day of August, 1929, upon the merits of the cause and reversed only as to the findings of certain amounts, at the same time giving specific directions as to how the decree should be modified.
And the Chancellor, by his order, having modified the decree in full compliance with the mandate, the modified decree is affirmed.
We are in accord with the contention that to reverse the orders of the Chancellor striking the petition would be to permit Appellants to assume a position with reference to the decree inconsistent with their attitude to said decree in the court below. To reverse the modified decree would be virtually saying that a solemn decree for specific performance should be binding on the one party, but optional with the other party as to whether it should perform or not.
The orders of the Chancellor striking petition are affirmed.
The final modified decree affirmed and the Chancellor directed to enter an order that the money in the registry of the Court be paid to Bula E. Croker subject to the rights of the intervenors.
DAVIS, C. J., and WHITFIELD, ELLIS and TERRELL, J. J., concur.
BUFORD, concurs in part.
BROWN, J., disqualified.