A petition for rehearing in this case suggests that the holding of our former opinion in this case is inconsistent with Crystal River Lumber Co. vs. Knight Turpentine Company, 69 Fla. 288,67 Sou. Rep. 974. It was not so intended and we are unable to perceive wherein the inconsistency lies. We endeavored to make it plain in *Page 278 our first opinion, and we here again re-affirm and emphasize the fact that our holding here is not intended to have the effect of modifying or overruling any of the previous cases referred to and cited in our former opinion, of which the above cited case is one.
The holding in Crystal River Lumber Company case, supra, is that when for any reason foreclosure proceedings are imperfect, irregular or void, a re-foreclosure may be had by the purchaser at the foreclosure sale against parties holding junior incumbrances who had been omitted as parties to the original foreclosure proceeding under which he bought, and that such right to a re-foreclosure extended to enforcing the mortgage lien against contract rights acquired subsequent to the mortgage, against the holder of such contract rights who, though known to be the holder of such rights, was not made a party to the first foreclosure.
That case involved a ruling on a demurrer only, and in affirming the order of the Circuit Judge overruling the demurrer to the bill of complaint for the second foreclosure, this court distinctly stated that where a subsequent foreclosure is asked for the subsequent foreclosure must be, and can only be had, "upon equitable principles". In this case there is no ruling on a demurrer to the bill involved, but the case is before the Court on an appeal from the final decree which the appellant asserts was not made upon "equitable principles" insofar as it attempts to make him redeem the whole mortgage debt to secure the recognition of his contract rights in one lot only out of a total of sixteen.
In the Crystal River Lumber Company case it was stated in the opinion on rehearing in that case:
"If the Appellant's contract rights in the property were in fact subject to the mortgage, such rights cannot be made superior to the rights growing out of the mortgage by mere failure to make the appellant a party to the foreclosure proceedings, where it is alleged that appellant *Page 279 had ceased operations under its contract rights and it was the belief of all parties that appellants 'would not thereafter make any claim under said contract', no estoppel of appellees appearing." (Italics ours).
"If a foreclosure proceeding is not complete it can be made complete by appropriate proceedings in the absence of controlling equities forbidding it."
The above quoted portion of the opinion in Crystal River Lumber Co. vs. Knight Turpentine Co., supra, should be sufficient to show that the holding of this case is not in conflict with the conclusions there stated.
This case does not involve a "mere" failure to join the Stewarts as parties to the first foreclosure, nor does it appear that the Stewarts had "ceased operations under their contract rights", nor that complainant in this case was justified in believing that the Stewarts "would not thereafter make any claim under" their contract. So the elements of the other case which largely controlled the decision of that case on a demurrer to the bill, and not on final hearing, where all the equities and countervailing considerations were before the Court for the making of an appropriate decree to do justice in the case are absent from the record here.
In this case the foreclosure was good as to every party having an interest except the Stewarts. The interest of the Stewarts exists in only one lot out of sixteen, and that interest is an equitable one under their contract of purchase from the mortgagor. Insofar as the mortgagor is concerned, his rights have been foreclosed, and the complainant in this case has acquired them by his purchase at the foreclosure sale, including the contract rights of the mortgagor against the Stewarts which have arisen out of the subject matter of the mortgage.
We have held here that "upon equitable principles" taking into consideration the rights of the Stewarts in the one lot which they not only had a contract on, but occupied and possessed under a claim that their contract rights were *Page 280 to the extent of such rights superior to the mortgage, when the first foreclosure was started, whether their claim to that effect was good or bad or not, the complainant, by starting such foreclosure and concluding it without joining the Stewarts as parties, in the face of such facts, has in effect waived his right to a re-foreclosure of his mortgage against the Stewartsfor any greater amount than the difference between the mortgage debt embraced in the decree and the amount which the first foreclosure sale produced.
Where a subsequent foreclosure is asked for in a case like this, it must be granted upon "equitable principles". These equitable principles contemplate the making of decrees where possible, that will secure the mortgagee his full mortgage debt, and which will not unnecessarily divest upon such subsequent foreclosure equitable rights of others who were omitted from the first foreclosure, except to the extent of giving the mortgagee his just dues. This is true, even though the first foreclosure could have been had absolutely against the omitted parties had they been joined.
The rehearing petition is denied.
WHITFIELD, P.J., AND TERRELL AND DAVIS, J.J., concur.
BUFORD, C.J., AND ELLIS AND BROWN, J.J., concur in the opinion and judgment.