This case, because of its voluminous record coupled with the fact that property rights of great value are involved, has given counsel for the respective parties and members of this Court a great deal *Page 693 of concern and has required of them an extraordinary degree of continuous labor.
Perhaps enough has been said in the opinions which have been and will be adopted. I concur in most of what is said in the opinion prepared for the Court by the learned Circuit Judge whose wise counsel we have in the disposition of this case, but I feel impelled to state here some of the things not stated in that opinion which bring me to a somewhat different conclusion from that which prevails.
The main opinion states the facts of the controversy now before the Court which may be summarized as follows: A entered into a contract with B by which A held B's property in trust for the purpose of sale and a conveyance of the property was made, executed and delivered by B to A in trust, that A might be in position to transfer the title to the property to a purchaser. The contract provided that A might convert the conveyance to a conveyance in fee by exercising the option to purchase the property himself upon electing to comply with the terms under which he was authorized to sell and convey the property to another. A's rights under the contract ran to his assignee. A, after a period of time, sought to revoke and cancel the contract and the trust deed by a suit filed for that purpose. A and his assignee in his answer to that suit elected to exercise the option and prayed for specific performance. The final result was that A and assignee prevailed in the suit and procured a decree as prayed for and as fought for throughout many years of litigation of that case. Both A and B filed in the Court, after the modified and amended final decree was entered, definite acceptances of the terms and conditions of the decree. It then developed that although A and his assignee were ready and willing to carry out the terms of the final decree, they were unable to do so, which *Page 694 inability, they aver, was due to the refusal of appellee to comply with her agreement as she was bound to have done. Conceiving that it was inequitable for B, after having thwarted for years their efforts to reach the conclusion attained by this rendition of the modified final decree, and had thereby placed them in position where they could not perform further, to hold a certain sum of money that had been decreed to be due her as a cash payment on the property and which was decreed to her as a part of the consideration for the title passing to A's assigns and at the same time in addition thereto, procure the exact result which she attempted to procure and contended for during years of litigation, A and his assignees appealed from the modified final decree contending that in equity and good conscience the decree should not be enforced as entered. The equity of this contention has appealed to members of this Court as probably having merit, but this Court is reviewing a final decree in which there appears to be no error and as to which the parties, at and after the rendition thereof, indicated by papers filed in the cause their unqualified acceptance. It is not within the province of this Court to assume original jurisdiction to determine equities between parties which equities are based on facts and circumstances either arising or becoming known and appearing after the rendition of the decree appealed from.
Appellee's insistence is that the modified and amended final decree entered by the Circuit Court in accordance with the mandate of this Court on a previous appeal is free from error and in accordance with the Supreme Court's mandate and that by it the record in this suit has been finally closed and all possible equities conclusively settled, as against any and all new proceedings of any kind or character.
But, as has been held by this Court, in the case of Sapp *Page 695 v. Warner, 105 Fla. 245, 144 Sou. Rep. 481, an appeal in equity is but a step in the cause, and even after a final decree has been affirmed, a court of equity at all times still retains its jurisdiction to do equity in the enforcement of the decree rendered by it, until it is fully executed.
In equity cases the affirmance of a final decree of specific performance by an appellate court is final and forever conclusive of the right of the successful party to have his rights specifically enforced to the extent adjudged and set forth in the decree as affirmed, or as directed to be entered or amended by the appellate court. Such final decree not only conclusively adjudicates and settles all matters of equity that were actually litigated between the parties as grounds either of complaint or of defense, but also all such rights as might have been asserted by appropriate pleadings prior to the entry of the final decree.
But, in cases where equitable considerations suggest it, and where it is reasonably required for the purpose of preserving the equities attempted to be made effective by theenforcement of a particular form of final decree, a court of equity may, even after final decree, and even after such final decree has been appealed from and affirmed, or entered after appeal pursuant to the directions of an appellate court, still entertain such further appropriate proceedings as may directly relate to the character and extent, or manner of itsenforcement, of its final decree.
Thus, in a recently decided foreclosure case, it was lately held by this Court in Sapp v. Warner, supra, that this permissible procedure of chancery courts by which they are permitted to control and modify the enforcement of their final decrees, included the right of the Chancellor, after a mandate affirming a final decree had been lodged with him, to entertain, on the basis of special and peculiar equities *Page 696 asserted to have arisen pendente lite while the appeal was undecided, appropriate supplementary proceedings having for their object the enforcement of a special and peculiar new equity to give effect to which, it was deemed indispensable for the Chancellor to change and to modify the terms and conditions of the final decree as originally entered.
A Court of Chancery, when it grants such special and extraordinary relief, does not act as a court of errors to examine and reverse its previous final decree. On the contrary, it treats the original final decree and all the previous proceedings as valid, and then acting on established new and additional, as well as special and peculiar, equitable considerations shown to have arisen, that could not have been asserted in the case earlier, it proceeds to relieve the petitioning party against the inequitable or unjust consequences of a literal and exact execution of the final decree as initially rendered, when, under the prevailing new equities set up and established, it is made to appear that the entire benefits flowing from the equities as adjudicated in favor of one of the parties against the other, cannot in good conscience be allowed to be retained and enjoyed by him exactly as first awarded. See Sapp v. Warner, 105 Fla. 245, 144 Sou. Rep. 481; Bank of Kentucky v. Hancock, 6 Dana (Ky.) 284, 32 Am. Dec. 76.
Such special and supplemental relief, when applied for by a complainant, was, under the old equity practice, procurable on a supplemental bill, which, with permission of the Court, was permitted to be filed in an appropriate case, even after final decree as well as before, if the circumstances alleged warranted it. Secor v. Singleton, 41 Fed. Rep. 725; French v. Hay, 89 U.S. 22, 22 Wall. 238, 22 L. Ed. 854. A supplemental bill (or a petition of the same *Page 697 nature under the new equity practice) may be brought, not only to insist upon the relief already prayed for or granted on the original bill, but upon relief wholly different from that prayed for in the original bill where facts which have since occurred, in equity require it. Miller v. Cook, 135 Ill. 190, 25 N.E. Rep. 756, 10 L. R. A. 292 (citing Story Eq. Pleading, 8th Ed. par. 336).
Under the reformed equity practice set up in the 1931 Chancery Act, supplemental petitions take the place of supplemental bills and supplemental bills in the nature of a bill of review. See Section 27 of Chapter 14658, Acts of 1931, Laws of Florida. But in substance, supplemental petitions filed under Section 27 of the 1931 Chancery Act are in legal effect supplemental bills, and when filed, must conform to the conditions, requirements and manner of pleading that governs true supplemental bills, or supplemental bills in the nature of a bill of review. A bill in the nature of a bill of review is the proper way to directly attack a final decree for equitable reasons going to its substance, such as fraud and the like. Miami Bank Trust Co. v. Mahlstedt, 107 Fla. 282, 144 Sou. Rep. 659. And on the same principle a petition to be filed in the same cause, in form and substance a supplemental bill in the nature of a bill of review, is the appropriate way to invoke the discretion of the Chancellor to change or modify a final decree in the character of relief to be incorporated in it, or to change it in any way essential to give effect to a new or peculiar equity that has arisen since the decree was entered.
After final decree, any petition having the characteristics of a supplemental bill in the nature of a bill of review is to be treated as being in all respects subject to the rules that govern and control the disposition of a true bill in the nature of bill of review, and such petition can only be filed *Page 698 with the express leave of the Chancellor, or the express leave of the appellate court, in cases where the final decree has been affirmed by that tribunal, or entered pursuant to its direction.
After it is permitted to be filed, all equities asserted by it are subordinate to any countervailing equities that may have accrued in favor of third parties under the force and effect of the final decree as entered. And to it, the same equitable defenses, such as laches, waiver, estoppel and the like may be interposed by the opposite parties in interest, as would be capable of being interposed to a supplemental bill as it was authorized under the ancient equity practice before the adoption of the new Chancery Act.
The present suit originated in an equity proceeding filed by Bula E. Croker, as an actor in the court of equity, seeking to have judicially reconveyed or decreed back to her the title to valuable lands which, at the time of the institution of that suit, was of record in the name of Palm Beach Estates. In opposition to Mrs. Croker's claim, Palm Beach Estates became an actor to the extent (but to that limited extent only) of seeking to have its status changed by judicial decree from that of holder of the legal title in trust, to that of holder of the legal title as a vendee under its option to purchase the property from complainant, which option was exercised after the suit was begun. The sum deposited by Palm Beach Estates in the registry of the Court was but a small part of the value of the lands involved. Its disbursement at this time is not the principal thing, but a mere subsidiary incident to, the winding up of the main controversy that the court below and that this Court, has adjudicated.
The gist of the contention of Palm Beach Estates and J. B. McDonald, the appellants, is involved in their attempt *Page 699 to invoke the equitable principle that he who prevents a thing from being done shall not avail himself of the nonperformance he has occasioned, or as it is stated in a Latin maxim,"nullus commodus capere potest de injuria propria," by asking the Chancellor to relieve them of their failure to perform on their part the terms and conditions of the final decree or else suffer a loss of the title to the property through a transfer of same from them back to Bula E. Croker, while at the same time Mrs. Croker received and retains the benefit of a substantial portion of the purchase price tendered into court, which tender she has, for a number of years, refused to take and thereby completely thwarted any beneficial enjoyment of the vended property by appellants who held title to it.
The effect of the final decree, as entered, was to confirm the title held in the name of appellants by converting it from that of trustee to vendee. The final decree at the same time had the effect of transferring the title to the deposit in court to Bula E. Croker. But the final decree went further than this. It required something more to be done by Palm Beach Estates and J. B. McDonald to hold the title thus confirmed in item as vendees. And in default of doing it, the final decree as originally entered, imposed as a consequence of default by the vendees, the reconveyance of the title to the property of Bula E. Croker. To the extent last mentioned, the final decree undertakes to confer a direct benefit on Bula E. Croker in the nature of the accomplishment of the whole object of her litigation in the first instance. This was to get the title to her property back in her name and defeat the confirmation of it in Palm Beach Estates or J. B. McDonald.
This is a specific performance suit, it is true, but one wherein at the time the suit was begun, the legal title to *Page 700 the res involved was already vested in the complaining litigants who finally succeeded in establishing through a decree of specific performance, their rights as vendees holding title and in possession. If the decree as entered stands unaltered, its practical effect is to cancel of record in Bula E. Croker's favor the documentary evidence of the title now standing in the name of appellants, and to permit her to receive and retain without diminution, that part of the initial payment represented by the deposit of $321,104.73 remaining in the registry of the court which the final decree gave to her.
Appellants in this situation, make the contention that their failure to perform the terms of the final decree as entered is not wilful, but can in equity be shown to be excusable by reason of the adverse effect upon them occasioned by the undue prolongation of the litigation brought about almost solely by Mrs. Croker's attempt to defeat their equitable and legal rights in this litigation in which she was unsuccessful throughout. An equity of this character, as an appeal to the conscience of a court of equity, may, even at this late day, in the light of what was decided in Sapp v. Warner,supra, be permitted to be set up by a petition for special and extraordinary relief in the nature of a supplemental bill directed at the terms and conditions imposed for the execution of the final decree and concerning the nature, character and extent of the relief which should be afforded thereby. It is limited to an effort to secure such a modification of the terms of the final decree as will preclude the decree's operation as a reconveyance to appellee, as vendor, of the title to the lands involved unless and until the appellee, Bula E. Croker, shall do equity toward the appellants, Palm Beach Estates and J. B. McDonald, with reference to such portion of the cash moneys as she has had adjudged to her under the final decree and has accepted *Page 701 and will receive under it, if the Court should deem such relief appropriate to carry into effect equitable principles of the kind mentioned and set forth in Taylor v. Rawlins, 86 Fla. 279, 97 Sou. Rep. 714, 35 A. L. R. 271, should the same be found to be equitably justified on such supplemental proceeding.
It appears to me that whatever grounds there may be for equitable relief from the terms of the final decree must necessarily be grounded upon and arise from those equitable conditions, if any, which may be created by the execution of the final decree and that, therefore, such relief, if any, can be had on a petition in the nature of a bill of review. After decree is unconditionally affirmed the Chancellor may not grant the filing of such bill without the permission of this Court.