This case was decided July 21, 1931, by an opinion filed in which it was held that the decree appealed from should be reversed and the cause remanded, with directions to enter adecree for the complainant in accordance with the viewsexpressed in that opinion. See foregoing opinion in Chapman v. St. Stephens Protestant Episcopal Church, 136 Sou. Rep. 238.
On the 6th day of January, 1932, we ordered the mandate *Page 718 recalled for the purpose of reconsidering the case on a petition for rehearing, and a rehearing has been granted. See foregoing opinion in Chapman v. St. Stephens Protestant Episcopal Church, 138 Sou. Rep. 630.
A reconsideration of our previous opinion convinces us that we were not in error in adopting the Commissioner's opinion as the law of the case, nor in reversing the decree appealed from in accordance with that opinion. But we are convinced that the reversal should have been without directions to enter a decree for complainant on the record as made.
Where the testimony submitted to a chancellor is not sufficient on some point to authorize a just decree in the cause, and it clearly appears from the record that testimony does not exist on such point sufficient to enable the court to make a just decree, the cause will be remanded with directions to take further testimony on such point. Morgan v. Dunwoody,66 Fla. 522, 63 Sou. Rep. 905; Graham v. Florida Land Mtge. Co.,33 Fla. 356, 14 Sou. Rep. 796; Fuller vs. Fuller, 23 Fla. 236,2 Sou. Rep. 426; Rain v. Roper, 15 Fla. 121.
Under the circumstances the proper judgment of this Court should now be, that the decree appealed from be reversed but with directions to reopen the cause, permit such further pleadings to be filed therein as the parties might be advised should be filed, and permit further testimony to be taken, and have such further proceedings in the cause below as will accord with the law of the case as declared in our first opinion considered in the light of the record as it appears at such further hearing in the Court below. See Winton v. Stone, decided at the present term.
Oral argument is unnecessary with respect to the foregoing disposition that should be made at this time. The Court is fully advised from its previous consideration of *Page 719 the briefs and record that the cause should be disposed of as hereinbefore indicated.
It is ordered that a mandate do issue accordingly.
BUFORD, C.J., AND WHITFIELD, TERRELL, BROWN AND DAVIS, J.J., concur.
*Page 720ELLIS, J., absent on account of sickness.