If, as we have held in our opinion of December 15, 1932, the complainant, in filing a bill to foreclose his mortgage, has no right to join as a party defendant thereto, one holding adversely to both mortgagor and *Page 426 mortgagee under a claim of paramount title, and if, as we have also held, one who claims under a tax deed is to be deemed to be one holding under a paramount title, the showing in an answer that a defendant joined as such party defendant claims solely and only under a tax deed, whether rightfully or wrongfully in law, is sufficient to bring such defendant within the rule entitling such defendant to be relieved fromlitigating his claim in the foreclosure suit, and is sufficient to entitle such defendant to dismissal from the cause as not having been a proper party defendant to the foreclosure suit when it was first begun. See Wood v. Franklin Life Ins. Co., 17 F.2d page 80.
Undoubtedly the mere assertion of a paramount claim by a defendant does not preclude the Court from proceeding to determine in the foreclosure case whether a tax deed has in fact, been issued covering the mortgaged property, before making an order dismissing, as to such defendant. Nothing in our first opinion was intended to so hold.
But to acknowledge the jurisdiction of the Court to enter upon any inquiry, however limited, as to thevalidity of a tax deed that has, in fact, been issued, would be to hold that in a foreclosure case the Court may proceed to adjudicate to some extent at least, claims of paramount title, adverse to both mortgagor and mortgagee, which is not a permissible procedure under the rule laid down in Brown v. Atlanta National Bldg. Loan Assn., 46 Fla. 492, 35 Sou. Rep. 403.
In the case last cited this Court declared that the "scope of a foreclosure suit" is merely to enforce the mortgage lien against the title or interests of mortgagor, and those claiming under him.
A tax deed holder claims under a new and original title, entirely disconnected with that of the former owner or mortgagor. Dean v. Kane, 106 Fla. 814, 143 Sou. Rep. 656. *Page 427 If his claim is invalid because his deed is ineffective to convey him the paramount title he claims, that question can, of course, be adjudicated and decided, but not in a foreclosure suit between a mortgagor and mortgagee who dealt with the land under the pre-existing title that the tax deed would have destroyed when it was issued, if such tax deed be not held to be invalid in a proper suit.
A tax certificate which has ripened into title under a statute providing that such certificate, after two years, shall be deemed to vest title in fee simple in the Trustees of the I. I. Fund, is to all intents and purposes, in legal effect, a tax deed so far as the law on the subject we are now discussing is concerned.
The Court did not overlook the appellee's contention to the effect that the tax certificate (or deed) in question was a nullity because it was claimed to have been issued on lands not subject to tax. The original opinion discloses a discussion of that point.
But we find no consistency in adhering to a rule that has for years limited the scope of a foreclosure suit to an enforcement of the mortgage lien sued on, and at the same time making an exception to it that would permit, in a foreclosure suit, a party claiming under an adverse tax certificate (or deed) whether void on its face or not, to be made a party defendant for the purpose of having the foreclosure deed operate as an adjudication that such defendant's claim of paramount title was not valid, whether the invalidity was apparent on the face of the evidence of the paramount claim or not.
This Court must either follow the general rule laid down in Brown v. Atlanta National Bldg. Loan Ass'n.,supra, or hold that it is no longer in effect. The scope of a foreclosure case is either broad enough to allow adjudication of adverse paramount tax titles or liens, or it is not. So far as adjudication is concerned, it makes no difference *Page 428 whether the adjudication is made on the basis of what appears on the face of the claim, or through a showing de hors. The effect of the adjudication is the same in either case, and the reason for limiting the scope of foreclosure proceedings would be as much defeated by the one procedure as by the other.
We are inclined to agree with appellee that in the course of orderly procedure, the dismissal of a defendant claiming under a paramount tax title or tax lien should not be made until the claim prima facie made to appear by an offer in evidence of its supporting proof, such as the actual tax certificate or deed itself, tendered in support of the answer, if the claim is not otherwise admitted or conceded. We sustain the petition for re-hearing on this point and modify our direction to dismiss accordingly.
The order appealed from should stand reversed and the cause remanded with directions for further proceedings not inconsistent with this and the original opinion in this cause.
The petition for re-hearing is denied.
DAVIS, C.J. AND WHITFIELD, TERRELL AND BUFORD, J.J., concur.