There is one sentence in our original opinion which, upon further consideration on rehearing, we now deem to be erroneous. It reads as follows:
"We hold that the affidavit upon which the order of publication was made is defective, fails to comply with the statute and is insufficient in law to confer jurisdiction."
The affidavit upon which the order of publication in this case was predicated is copied in the opinion, and it sets forth that, in the belief of affiant, the defendant Klinger, and certain other named defendants, "are non residents of the State of Florida, and are residents of a State or country other than the State of Florida, and that the place of residence of said defendants is unknown. Affiant further says that he believes that said defendants are over the age of twenty one years and that there is no person in the State of Florida, the service of a subpoena upon whom would bind said defendants."
We overlooked the fact that the allegations in the affidavit that "it is the belief of the affiant that the defendant is a resident of a state or country other than the State of Florida and that his residence is unknown," when coupled with the other statutory requirements, has been held by this Court in several cases to be a sufficient basis for the issuance of an order of publication under Section 3111 Rev. Gen. Stats. of 1920, being Section 4895, Complied General Laws of 1927. One of the most recent decisions of this Court on this subject was in the case of Bannon v. Kendall, 117 Fla. 475, 158 So. 99, wherein the affidavit for service by publication omitting the jurat, read as follows: *Page 63
"State of Florida, "County of Dade.
"Personally appeared before me, Evelyn Kendall, who is personally known to me and who being duly sworn deposes and says that she is the complainant in the above styled cause and that the defendant, Arthur Kendall, is a resident of a State or Country other than the State of Florida, and that his residence is unknown to Complainant, that said defendant is over the age of twenty-one years, and that there is no one within the State of Florida, service of a subpoena upon whom would bind said defendant, and complainant prays for service by publication.
"Evelyn Kendall, Complainant."
We held this affidavit to be sufficient in form and the constructive service obtained by publication thereon valid. See, to like effect, Kennedy, et al., v. Seville Holding Company,125 Fla. 415, 169 So. 860, and Catlett v. Chestnut, 107 Fla. 498,146 So. 241.
The law on this subject was really settled by this Court in the case of Balian v. Wekiwa Ranch, 97 Fla. 180, 122 So. 559. The affidavit in that case upon which order of publication was issued stated that the places of residence of the defendants, naming them "are unknown, and that diligent inquiry has been prosecuted by deponent for and on behalf of the said complainant to ascertain the same; and there is no person in the State of Florida service of subpoena upon whom would bind the said defendants or either of them, and that it is the belief of the deponent that the defendants are over the age of twenty-one years." In that case, in the opinion by Mr. Justice STRUM, it was said:
"Complainant's affidavit as to the residence of the defendants, above set forth, is sufficient upon its face to authorize *Page 64 the issuance of an appropriate order of publication under Section 3111, supra.
"Section 3111, supra, provides four alternative situations in which the complainant may have an order of publication to effect constructive service upon the classes of defendants therein referred to, namely, (1) `Whenever the complainant, his agent or attorney, shall state in a sworn bill or affidavit, duly filed, the belief of affiant that the defendant is a resident of a State or County other than this State, specifying as particularly as may be known to affiant such residence, or (2) that his residence is unknown, or (3) that, if a resident, he has been absent for sixty days next preceding the application for the order of publication, and that there is no person in the State the service of a subpoena upon whom would bind such defendant, or (4) that he conceals himself so that the process cannot be served upon him.' (Italics supplied). Certain other statements are also required concerning the age of defendant, which are necessary with reference to all classes of defendants as above enumerated.
"Each of the four alternative situations above mentioned, including that in which the affiant states that defendant's residence `is unknown,' are set off in commas, and are separated by the disjunctive `or,' indicating the legislative intent that each situation should furnish a distinct, independent and substantive basis for the issuance of an appropriate order of publication, other requirements of the statute being complied with."
It is true that it was held in that case that the filing of an affidavit, although sufficient on its face to support an order of publication, does not conclude the matter against timely and appropriate attack; that the statement must be truthful and free from mala fides, and that the sworn statement required of the complainant by the statute presupposes a previous reasonable search to ascertain the whereabouts or *Page 65 residence of the defendant, and the exercise of reasonable diligence appropriate to the circumstances of the particular case. But the opinion as a whole makes it plain that if the affidavit on its face complies with the statute, and an order of publication is duly issued thereon and publication made as ordered, which order is not set aside on timely and appropriate attack, this is sufficient to give the court jurisdiction of the parties. Jurisdiction of the subject matter is not here under attack. In connection with the general question of due diligence in the matter of procuring service by publication see also McDaniel v. McElvy, 91 Fla. 770, 108 So. 820; Minick v. Minick,111 Fla. 469, 149 So. 483; Smetal Corporation v. West Lake Investment Co., 126 Fla. 595, 172 So. 58; 50 C.J. 496, et seq.
Of course there is a difference between a decree based upon an alleged service by publication where such service is void on its face, or the record shows that such service was never completed, and a decree which is based upon an affidavit and service that, on the face of the record, complies with every statutory requirement and that may or may not be voidable, depending upon facts that are extrinsic, such as lack of due diligence in attempting to ascertain the residence or address of the defendant before resorting to constructive service, or before filing an affidavit stating that defendant's residence is unknown, as a basis for such constructive service.
This case involves an affidavit, (and service by publication based thereon) which, according to our previous decisions, is good and sufficient on its face to give the court jurisdiction. The main question involved in this case, then, is whether the record in the present suit shows such lack of due diligence on the part of complainant, or the attorney for the complainant, in the foreclosure suit, before making the affidavit that defendant's residence was unknown, as would *Page 66 render the decree and sale based thereon voidable upon proper attack by the defendant Klinger as against the complainant in the foreclosure suit; and if so, what effect does this have as against Mrs. Lummus, who purchased the property from such complainant?
In the case of Stern v. Raymond, 95 Fla. 410, 116 So. 6, the affidavit for publication was sufficient, but there was no actual publication of the order and no filing of the proof of publication. Thus the record itself showed that the requirements of the statute had not been carried out and therefore any one buying the property subsequent to the decree would be charged with knowledge of the lack of service as shown by the record.
But in this case, as we have seen, the affidavit for publication involved was sufficient in form to comply with the statute, and was duly published, and the proceedings in the tax foreclosure suit were, therefore, on the face of the record, regular, so far as jurisdictional matters are concerned.
We come now to the facts bearing on the question, again raised on this rehearing, as to whether or not the complainant in the foreclosure suit, the Milton Holding Company, exercised due diligence before filing said affidavit stating that defendant Klinger's residence was unknown. If said defendant's residence was known to complainant, or his attorney who made the affidavit on behalf of complainant, or could have become known by the exercise of reasonable diligence, then the filing of such affidavit was not legally justifiable, and rendered the service by publication and the decree rendered thereon voidable at least as between the parties to that suit. If the defendant's residence had been set forth in the affidavit, it would have become the statutory duty of the clerk to mail a copy of the order of publication to him. The defendant was deprived of this opportunity of receiving notice of the pendency of the foreclosure proceeding, *Page 67 and we hold now, as we held in our original decision, that defendant Klinger was so deprived by reason of the failure of the complainant, Milton Holding Company, to exercise due diligence to ascertain the residence and address of said defendant and set it forth in the affidavit. As was pointed out in our former opinion, the record of the deed from Miami Beach Bay Shore Company to defendant Klinger, which deed was made in March of 1925 and recorded in the Clerk's office in July of the same year, clearly showed that Klinger's place of residence was Dayton, Montgomery County, Ohio. This deed was brought to the attention of the complainant by the abstract of title which it had in its possession and which was examined by complainant's attorney, as shown in our previous opinion. This information alone was readily sufficient, if properly followed up by an inspection of the record of the deed, to have acquainted complainant with said defendant's residence. Sapp v. Warner, 105 Fla. 245, 141 So. 124. The Complainant in the foreclosure suit knew that Klinger claimed some title or interest in the land, and so alleged in its bill to foreclose, and made him and his wife parties defendant to the bill. We held in our original opinion that the failure to inspect the record of the deed, of which complainant had notice as aforesaid, was, under the circumstances, a failure to exercise reasonable diligence, and we adhere to that holding. See also opinion of Mr. Justice BUFORD in Davis and Knight v. Brewer, decided at the present term, but not yet reported, to similar effect. The case of Eldridge v. Fitz Co., 126 Fla. 548,171 So. 509, is strongly persuasive of the correctness of our position, though not strictly in point, because in that case, the plaintiff's bill showed that plaintiff had knowledge of a recorded instrument which showed the address of the non-residence defendant.
When a complainant resorts to constructive service, he *Page 68 should make an honest and conscientious effort, reasonably appropriate to the circumstances, to acquire the information necessary to fully comply with the controlling statutes, to the end that the defendant, if it be reasonably possible, may be accorded notice of the suit.
The conclusion above reached makes it unnecessary to determine whether due diligence required any search of the duplicate tax receipts or the stub books of the tax collector. These are not public records in the same sense as are deed and mortgage records. They are not required to be indexed. But it would seem that where a plaintiff is attempting to foreclose tax certificates, he would probably familiarize himself with what the tax records show as regards the property. Nor is it necessary to determine the evidentiary value of the letter received by the defendant in January, 1933, which was the first information he had received of the tax foreclosure proceeding, and which showed that the writer knew Klinger's street address in Dayton, Ohio. This letter was not written by the foreclosing complainant's attorneys, but was written by the attorneys for Mrs. Lummus, who purchased from the Milton Holding Company about two years after the bill for foreclosure was filed for that company by other attorneys, something over six months after the foreclosure decree was rendered. These matters were mentioned in our original opinion, but were not expressly made the basis for the conclusion reached. We might also call attention to the fact that one of the witnesses placed on the stand in behalf of the defendants in the court below, appellees here, said witness being a prominent and experienced attorney of Miami, on cross examination testified that the grantor in the deed to appellant Klinger, the Miami Beach Bay Shore Company, was one of Carl G. Fisher's corporations, and was a well known realty firm, one of the best known at Miami Beach, and that inasmuch as the abstract disclosed the name of the *Page 69 grantor, ordinary and usual diligence would have required telephoning that company in an effort to ascertain the residence or address of their grantee, Klinger. The record does not show that any such inquiry was made. The question of due diligence is largely a question of fact. As above stated we have not rested our decision upon each of these matters separately, but they do, considered together, shed some light upon the general attitude of, and the degree of diligence exercised by, the Milton Holding Company at the time this service by publication was obtained. But we think their failure to inspect the public record of the deed from the Miami Bay Shore Company to Appellant Klinger was, by itself, under the circumstances, sufficient to show a lack of due diligence.
The importance of requiring the exercise of due diligence in connection with procuring constructive service by publication is illustrated by the facts of this case. The appellant here, P.W. Klinger, is shown by the record to have been a business man of the City of Dayton, Ohio, who had been operating a manufacturing company in that city for more than twelve years at the time of this suit. He paid the Miami Beach Bay Shore Company $5000.00 in cash for this lot in May of 1925. His testimony shows that in Dayton, Ohio, all taxes are paid in one tax collector's office. Immediately upon finding that there were two tax collectors' offices in Miami, he inquired both of the tax collector and of the clerk of the circuit court what taxes were due on this land, payable through their offices, and in response to this inquiry received a statement only of 1928 taxes. These he promptly paid, and continued to pay the State and County taxes for the years 1929 to 1932, promptly each year. He did not make any return on this property for the year 1926 or 1927 and the tax assessor assessed the same as unknown. In March of 1931 the Milton Holding Company procured *Page 70 the assignment of tax certificates for the years of 1926 and 1927 and instituted an action to foreclose these certificates against the lands covered therein, the amount of such certificates aggregating less than $100.00. In this suit, as we have seen, the affidavit for publication alleged that the residence of the defendant was unknown. The suit proceeded to final decree, and at Master's sale the plaintiff in the suit, Milton Holding Company, became the purchaser on February 1, 1932, and the sale was confirmed by an order of the Court dated February 11, 1932, on which date the Master executed his deed to said purchaser and the same was filed for record on that date. Thus the plaintiff in the foreclosure suit secured for about $100.00 a lot for which the defendant Klinger had paid $5000.00. Thereafter, on August 16, 1932, the Milton Holding Company executed a deed to Mrs. Lula J. Lummus, conveying said lot to her. At the time this deed to Mrs. Lummus was executed, more than six months had elapsed from the date of the final decree and the decree confirming the foreclosure sale and the time for taking an appeal therefrom had expired. Several months later, on January 27, 1933, the attorneys for Mr. Lummus wrote the letter to Mr. Klinger quoted in our original opinion, which was his first information as to what had happened. Upon making this discovery, Klinger promptly offered to reimburse the appellee for its outlay, including interest, penalty and expense, as of the time of filing its bill. This offer being refused, he filed his bill attacking the validity of the final decree and said Master's deed, and also the deed to Mrs. Lummus, who suffered a decree pro confesso to be entered against her. The defendant Milton Holding Company demurred to the bill, which demurrer was overruled, whereupon it filed its answer. The bill did not allege that Mrs. Lummus knew P.W. Klinger, or his residence or address at the time she purchased the property. It simply alleged *Page 71 that she became the purchaser of the property and that deed was executed to her by the Milton Holding Company as above stated. Whether she was an innocent purchaser for a valuable consideration, or not, is not alleged in the bill. Nor did the bill accuse any one of intentional fraud. The bill filed by Mr. Klinger to set aside the foreclosure decree and the subsequent conveyances is grounded mainly upon the allegations of an utter lack of due diligence on the part of the plaintiff in the foreclosure suit in filing to ascertain and show in his affidavit for publication the place of residence of the defendant in that suit to be Dayton, Montgomery County, Ohio, which it was contended was the equivalent of actual fraud and rendered the decree and the master's deed executed thereunder null and void.
As above stated, the evidence in the case showed the lack of due diligence as charged, but the affidavit and service by publication being valid and sufficient on the face of the record, the final decree and the action taken thereunder were not absolutely void but merely voidable.
It follows from what has been said above, and from the decisions cited, that the foreclosure decree thus attacked was and is clearly voidable at the suit of the appellant Klinger as against the plaintiff in the foreclosure suit, the Milton Holding Company, and the chancellor erred in dismissing appellant's bill in so far as the Milton Holding Company was concerned, but the question arises, and has been earnestly argued on this rehearing, whether there was any error in dismissing the bill as respects the co-defendant, Mrs. Lula J. Lummus. It is urgently insisted by counsel for Mrs. Lummus, that, at least as to her, the bill was without equity and that the chancellor was justified in dismissing the bill.
In the case of Moor v. Neil, 39 Ill. 256, 89 Am. Dec. 303, it was held that where a bill in chancery is filed to set aside an administrator's sale, the proceeding should not, perhaps, *Page 72 be regarded as collateral to the former suit so far as it relates to the parties to that suit, but as to purchasers whose title derived from the sale is sought to be divested it is purely collateral.
In 35 C.J. at page 94 it is said that "A bona fide grantee from a purchaser at a judicial sale is not affected by irregularities, mistakes or fraud, of which he did not have notice, although as to the grantor, sale might have been set aside."
And further on the same page it is said: "The purchaser's grantee is chargeable with notice of all jurisdictional defects, but his title is not defeated by a subsequent reversal or vacation of the judgment for error or irregularity, although it may be affected with an equity in favor of other persons by reason of his having purchased with knowledge of facts rendering his title voidable." See also in this connection 34 C.J. 563, 567, and in 11 C.J. 960, "collateral proceeding" is defined as follows: "In law, another proceeding, not for the direct purpose of impeaching the proceeding to which it is said to be collateral." In Johnson v. McKinnon, 54 Fla. 221, 45 So. 23, this court said:
"A decree rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect to its validity, verity or binding effect, by parties or privies in any collateral action or proceeding. 23 Cyc. 1055; Rushing v. Thompson's Executors,20 Fla. 583, text 596.
"Where the decree is such a one as the court had jurisdiction to render, the presumptions are all in favor of its regularity and validity until vacated by some proper proceeding instituted directly for the purpose of correcting errors therein and cannot be attacked collaterally. Lee v. Patten, 34 Fla. 149,15 South. Rep. 775; Finley v. Chamberlain, *Page 73 46 Fla. 581, 35 South. Rep. 1. A decree that is absolutely null and void, however, may be collaterally assailed. But the decree that is voidable only, because irregular or erroneous, must be moved against in time by motion to vacate, or by resort to an appellate tribunal, otherwise it becomes an absolute verity. Einstein v. Davidson, 35 Fla. 342, text 355, 17 South. Rep. 563; Lord v. Dowling, 52 Fla. 313, 42 South. Rep. 585."
In the case of Kroier v. Kroier, 95 Fla. 865, 116 So. 753, this Court held that delay in moving to have a judgment vacated, so long as the party had no notice of the judgment and no rights of innocent third parties have intervened, will not usually bar his right to the relief prayed for.
It was also held in the same case that a judgment which is void, as distinguished from voidable only, may be set aside on motion after the expiration of the term, and may even be collaterally assailed. See also Goodrich v. Thompson, 96 Fla. 327, 118 So. 60, and Chisholm v. Chisholm, 98 Fla. 1196,125 So. 694.
In Sawyer v. Gustason, 96 Fla. 6, 118 So. 57, this Court held that: "Where, in a suit to quiet title against a non-resident, as to whom constructive service by publication was had, the bill alleged that the lands were wild, unoccupied and unimproved, but it was subsequently made to appear to the Court by motion of such defendant to vacate the decree rendered in favor of the complainant, that such allegation was untrue and that the lands were in fact in actual possession of such non-resident defendant through an agent, the action of the Court in granting the motion to vacate, will be sustained; the defendant having acted with due diligence upon learning of such decree.
"Such decree, being valid on its face and there being nothing in the record showing it to be otherwise, was not void, but merely voidable, as the facts showing the Court's *Page 74 lack of jurisdiction could only be established by matter dehors the record."
In the case of Smetal Corporation v. West Lake Investment Co.126 Fla. 595, 172 So. 58, this Court said:
"It is also contended that it was not alleged in the bill that Hulda M. Elsasser and her husband had any knowledge of any alleged fraud or defects in the service of process, and must therefore be presumed to have been innocent purchasers for value from the West Lake Investment Co., and entitled to rely upon the record of said cause as it existed at the time of their purchase, inasmuch as the service was valid upon its face and is now attacked solely upon matters de hors the record.
"Taking up this last contention first, there is no allegation in the bill that Mrs. Elsasser or her husband paid any valuable consideration for the deed made to them by the West Lake Investment Co. The bill merely alleges that on March 8th, 1934, which was three days after the Master's sale and two days after the Master's deed to the West Lake Company was executed the West Lake Company "executed and delivered a deed to said premises to the defendant, Hulda M Elsasser, "which deed was recorded that same day. The bill also shows that at that time the premises were in the actual possession of the Smetal Corporation through its tenant, who had rented the property from the Smetal Company and moved into it several days prior to the making of said deed, and that the Smetal Company's first knowledge of the attempt to foreclose on its property was when its tenant in possession notified said Company that Mrs. Elsasser had demanded possession of the property and that he, the tenant, had later been ordered to show cause before the Court why a writ of assistance should not issue to divest him of his possession.
"The petition for rehearing impliedly admits that Mrs. *Page 75 Elsasser was chargeable with notice of any lack of jurisdiction of the parties or subject matter apparent on the face of the record of the cause. (See 35 C.J. 82) An inspection of the record would have disclosed to her that the certificate of the Secretary of State had not been filed, as required by Sec. 4261, C.G.L. when the order of publication was made; which, in the opinion of a majority of the Court, was sufficient to show, on the face of the record, that the order of publication was illegally issued. The rule of caveat emptor applies in its utmost vigor and strictness to those claiming under judicial sales. See opinion by Mr. Justice BUFORD in Lindsley v. Phare, 115 Fla. 454,155 So. 712, and authorities cited."
In this case, however, the record in the foreclosure proceeding did not disclose any jurisdictional defects on the face thereof; nor was there any tenant in possession of this property so as to put Mrs. Lummus upon inquiry, as in the cited case. The property here involved is a vacant lot.
But is the appellee, Mrs. Lummus, in a position to assert any rights as a bona fide purchaser for value and without notice, on this appeal from a decree in her favor in the court below, which decree dismissed the bill both as to her and to the Milton Holding Company? Having suffered a decree pro confesso to be entered against her, and there being nothing in the record to show that she took any steps to defend herself in the court below, except by merely filing exceptions to the Master's report, and there being nothing in the record to show positively that she paid anything of value for the deed from the Milton Holding Company, can she now insist that the decree of the court below dismissing appellant's bill should be sustained, at least insofar as she is concerned?
Mrs. Lummus was personally served with process in this case and did not see fit to file any appearance or answer. *Page 76 She allowed a decree pro confesso to be entered against her. When the Master rendered a report favorable to plaintiff Klinger she did file exceptions to the Master's report, but the record does not show that she obtained leave of the court to do so except by inference. The Milton Holding Company also filed exceptions to the Master's report, and in its decree the court below sustained the exceptions, and dismissed the bill.
In this connection we might note some of our former decisions.
"After decree pro confesso in an equity cause the proceedings are ex parte and the defendant in default is not entitled as of right to present a defense, but is not deprived of the right to question the legality and material correctness of the proceedings. Lybass v. Ft. Myers, 56 Fla. 817, 47 So. 346."
"The proceedings in a chancery cause after a decree proconfesso regularly entered are ex parte, and a party in default will not be entitled to notice; but while such proceedings are exparte, the final decree must be such as the complainant is entitled to on his bill, and a decree pro confesso on a bill to foreclose a mortgage will not dispense with the production on final hearing of the mortgage securities, where they are the only evidence of complainant's right to recover. Lenfesty v. Coe,34 Fla. 363, 16 So. 277."
"The proceedings in a chancery cause after a decree proconfesso regularly entered are ex parte, and the party in default will not be entitled to notice of them; but while such proceedings are ex parte, the final decree in the cause must be proper and consequent upon the case made in the bill. Garvin v. Watkins, 29 Fla. 151, 10 So. 818. See Sec. 87."
"A decree pro confesso entitles the complainant to the relief for which a proper predicate has been laid in the bill *Page 77 of complaint. Ocala v. Anderson, 58 Fla. 415, 50 So. 572; King v. Bell, 54 Fla. 568, 45 So. 488."
In view of these former holdings of the court, the bill filed by the appellant Klinger clearly entitled him to the relief prayed for as against the defendant Milton Holding Company, if it alone were concerned, but it does not clearly allege such facts as would clearly show that plaintiff Klinger was entitled to a decree canceling the deed made by Milton Holding Company to Mrs. Lummus. The bill does not allege that Mrs. Lummus acquired the title without the payment of any valuable consideration, or that there was any collusion between her and the Milton Holding Company, or that she had any notice at the time she took the deed of any lack of diligence on the part of Milton Holding Company with respect to the constructive service purported to have been obtained in the foreclosure suit against Klinger.
While this record does show that Mrs. Lummus or her attorneys knew the residence address of Klinger in January of 1933, this does not necessarily mean that Mrs. Lummus had that information at the time she purchased the lot in August, 1932.
In view of the circumstances of this case, as disclosed by the record, our conclusion is that our former judgment reversing the decree of the lower court in toto should be adhered to on this rehearing, but that the cause should be remanded with leave to the appellant Klinger, if he be so advised, to amend his bill so as to show if he can that Mrs. Lummus was not a purchaser for value and without notice, and with the authority to the lower court to permit Mrs. Lummus to file an answer to the amendment so made, and that such further proceedings may be had and orders and decrees shall be made in this cause as shall be conformable to equity and not inconsistent with the foregoing opinion, *Page 78 or with our original opinion in this case except insofar as the same is hereby modified.
Reversed and remanded with directions on rehearing.
WHITFIELD, P.J., and CHAPMAN, J.J., concur.
TERRELL, C.J., and BUFORD, J., concur in the opinion and judgment.
THOMAS, J., not participating, as this case was submitted before he became a member of the Court.