The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered, and decreed by the Court that the order of the court below should be, and the same is hereby reversed.
STRUM, C.J., AND WHITFIELD, ELLIS, TERRELL, BROWN AND BUFORD, J.J., concur.
ON REHEARING. Opinion filed July 11, 1931. 1. A failure to make a subsequent mortgagee a party defendant to a prior statutory lien foreclosure suit within twelve months from the accrual of the lien does not thereby cause a judgment lien obtained thereunder to become inferior to the mortgage lien, and its priority may be set up in a cross-bill filed in the subsequent mortgage foreclosure suit which was filed more than one year after the statutory lien accrued.
2. Unless one holding a subsequent mortgage on the premises upon which a mechanic's lien is being foreclosed is made a party his rights as a subsequent mortgagee will not be enlarged, diminished or affected or will remain the same as before suit was filed.
3. A subsequent mortgagee or incumbrancer may assert any rights as against a former mechanic's lien in a subsequent suit to foreclose his mortgage which he may have maintained or asserted in a former suit to enforce a prior statutory lien on the same property; but such subsequent mortgagee would not be permitted to assert the mere failure to make him a party to the former lien foreclosure suit gave him the right in the absence of fraud to question the priority of the statutory lien judgment obtained pursuant to statutory requirements.
4. "Enforcement" of a statutory lien means that the provisions of the lien enforcement statute are invoked and put in operation which may continue until final adjudication of the rights of all parties legally involved, and once the priority of the lien legally attaches and is pursued to judgment its enforcement as to a *Page 580 subsequent encumbrance becomes merely a matter of asserting the former judgment.
5. A judgment obtained upon all issues duly raised pursuant to statutory lien enforcement suit as to the property owner and all parties duly served as defendants in res judicata, but a subsequent encumbrancer who was not made a party may assert any rights he may have in a subsequent suit not legally adjudicated in the lien enforcement suit that would have been a legal defense to the validity to all or any portion of the mechanic's lien suit.
6. No doctrine is better settled in this State than that fraud, deceit or collusion is always a ground for equitable interference when properly instituted in courts of chancery.
Appeal from Circuit Court, Dade County; Paul D. Barns, Judge.
Former opinion reversing lower court is affirmed.
Paul C. Taylor and Carroll W. Fussell, for Appellant;
Burdine, Terry Fleming and Charles M. Moon, for Appellee.
Stapp, Gourley, Vining Ward, as Amicus Curiae on the Rehearing.