For other proceedings in this case see Brogan v Ferguson,101 Fla. 1306, 131 Sou. Rep. 171, 101 Fla. 1311, 133 Sou. Rep. 317; Hardee v. Bennett, foregoing *Page 290 opinion rendered April 20, 1932, 140 Sou. Rep. 906, and foregoing opinion rendered May 21, 1932, 141 Sou. Rep. 753.
In our opinion rendered April 20, 1932 (Hardee v. Bennett,105 Fla. 282, 140 Sou. Rep. 906) we held that in a first mortgagee's foreclosure suit against first mortgagor, who held second mortgage, and holder of fee, first mortgagor's suit pending to compel immediate and remote grantee to pay first mortgage and seeking also foreclosure of second mortgage, a plea in abatement of another action pending was bad, which did not show that first mortgagee was a party to subsequent transactions between first mortgagor and grantee who assumed mortgage, and that such plea in abatement was properly overruled, since first mortgagee could not be compelled to delay his proceedings to enable first mortgagor and parties with whom she dealt subsequent to first mortgage, to settle their rights between themselves. A rehearing was granted and the case re-argued on that point.
The re-argument has failed to convince us of any error in our first conclusions.
The case of Rowley v. Williams, 5 Wisconsin 151, which is solely relied on by appellant for reversal of the order appealed from which disallowed the plea, is to the effect that where a subsequent mortgagee commenced a suit for foreclosure, making a prior mortgagee a party, and the latter came in and answered, setting up his interest, and afterwards commenced a suit for foreclosure of his first mortgage, entitled the subsequent mortgagee who first started suit to plead the pendency of his action in abatement of the first mortgagee's attempt to foreclose his mortgage in a subsequently instituted suit, after having already set up his interest seekingsatisfaction out *Page 291 of the common estate covered by both first and second mortgages.
In this case Bennett, the first mortgagee, was not shown to have set up his first mortgage seeking satisfaction of it inthe first suit to which he was joined as a party defendant. The plea to which was attached a copy of Bennett's answer in the first suit, which answer was made a part of the plea, merely shows that Bennett disclosed in reply to complainant's allegations, that he was a first mortgagee, and by that answer he prayed no relief of any kind seeking satisfaction of his first mortgage in that suit.
In equity, another suit depending in the same Court, for the same matter, is a good plea, if it contained the necessary averments, and is in proper form. Rowley v. Williams, 5 Wisconsin 151. But here another suit in the same court was not shown by the plea to be depending for the same matter, i. e., foreclosure of the first mortgage. So a plea in abatement was not the proper remedy to hold up Bennett's foreclosure pending the adjustment of other equities relating to the same general transaction of which Bennett's first mortgage was a part.
Bennett was entitled as against the matters set up in the plea in abatement to proceed with the foreclosure of his first mortgage by prosecuting that suit to a final decree. Thereupon the Court in the other case in which Bennett was a party might have power in adjusting the equities therein required to be settled, to stay further proceedings by Bennett in the execution of his foreclosure decree, until the conflicting equities of all the parties to the first suit could be adjusted and protected and the decree of the Court with regard thereto made effective.
This is upon the principle that where the subject matter of a suit arises primarily from the relations of first *Page 292 and second mortgagee, with reference to the mortgaged premises, the matter is one peculiarly the subject of equitable cognizance, which entitles a Court of equity, which has obtained jurisdiction of the res and of all the interested parties asserting conflicting rights to it, to enter an appropriate decree giving effect to all the rights appearing before it, in accordance with equitable principles. Gorton v. Paine, 18 Fla. 117.
But in the separate foreclosure case brought by Bennett to foreclose his first mortgage, we know of no principle of equity jurisprudence which entitled the appellant to an abatement of such suit, and thereby to preclude a final decree from passing in it, even though the final decree after it should be rendered might be stayed as to its execution if equitable principles require, and the course of procedure taken warrants such stay. Such a stay could certainly be obtained in equity on considerations which have been held to warrant similar stays at law, especially when a stay is shown to be necessary to avoid an inequitable result. Foote v. Clark, 102 Mo. 394,14 S.W. 981, 11 L.R.A. 861; Baker v. Brem, 103 N.C. 72, 9 S.E. 629, 4 L.R.A. 370. Note 127, Am. St. Rep. 710.
The decree appealed from is reaffirmed.
WHITFIELD, P.J., AND TERRELL, J., concur.
BUFORD, C.J., AND ELLIS AND BROWN, J.J., concur in the opinion and judgment.