ON REHEARING. The petition for rehearing advances the appellees' contention that the Chancellor in allowing a deficiency decree in this case (which deficiency decree was reversed by our opinion filed September 3, 1935) did not allow the same by way of a recovery for taxes eo nomine as this Court's opinion seemed to imply, but as a sort of indemnity against the amount of taxes that had accrued on *Page 447 the conveyed property during the time the title was in the vendees subject to the purchase money mortgage which was in this case foreclosed.
In other words, appellees maintain that the Chancellor was entitled under the law to enter for a much larger amount, a deficiency decree in this case against the mortgagors and against those identified with such mortgagors as alleged joint adventurers in the purchase of the mortgaged land, but that he only allowed a recovery by way of deficiency for that part of the total deficiency which was the equivalent of (but not the representative of) the accrued and unpaid taxes that had become "plastered" (to use the descriptive language of the appellees) as tax liens against the mortgaged rem.
It must be confessed that there has been created some confusion in the minds of this Court by the Chancellor's language that he was decreeing a deficiency judgment for "the sum of $4,925.87, which is the amount due the complainants for past-due taxes and improvement liens" in the particulars charged in appellee's petition for rehearing.
However, this was strictly a mortgage foreclosure suit, the foreclosure of a purchase money mortgage wherein the note and mortgage was signed only by R.J. Taylor, Trustee, Taylor's wife joining in the mortgage. If Pasco was a joint adventurer with Taylor in the purchase of the property, as held by the Chancellor, his liability is not on the notes for security in the payment of which the mortgage was given, since he did not sign, but is an implied liability for the purchase price irrespective of the notes, although perhaps measurable in a proper action by the amount of the notes. Section 6778 C.G.L., 4692 R.G.S.; Drew v. Hobbs, 104 Fla. 427, 140 Sou. Rep. 211, text 213. And even if mortgagor Taylor signed solely in a representative capacity without disclosing his principal, it would not exempt *Page 448 him from liability on the notes. Section 6780 C.G.L., 4694 R.G.S.
Under the law the Chancellor could have adjudicated the amount of taxes due, and thereupon decreed that the mortgaged land should be sold free of the tax and improvement liens on it at the time by directing that same be discharged out of the sale proceeds. (Chapter 10285, Acts 1925, Section 954 C.G.L.) But he did not do so, hence the mortgagee-purchaser at the Master's sale is presumed to have arrived at the amount of her bid therefor in consideration of the fact that the property was being sold cumonera the taxes and improvement liens subject to which it was being sold.
Therefore the Chancellor should not have indirectly allowed recovery for such tax and improvement liens either in the form of a deficiency judgment limited to the amount of same or by requiring in terms that the mortgagor should pay them, or by indirectly undertaking to measure the amount of a larger deficiency claimed on the basis of other considerations, by the amount of such tax improvement liens.
The reversal of the deficiency judgment should stand as against the petition for rehearing, but with leave of the Chancellor to reconsider the whole question of deficiency judgment in the light of the limitations stated in this opinion which should be construed as a modification of the former opinion to that end.
Rehearing denied with modification of former opinion.
WHITFIELD, C.J., and TERRELL, BROWN, BUFORD and DAVIS, J.J., concur. *Page 449
ON SECOND PETITION FOR REHEARING.