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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 713 En Banc. On petition for rehearing. Opinion Filed July 17, 1926. 1. Before the enactment of Chapter 7839, Laws of Florida, 1919, requiring a deficiency decree to be entered when the proceeds of the sale of property subject to the lien being enforced should not be sufficient to pay the debt and costs, the power of the court to enter such decrees in foreclosure of mortgages was exercised under Rule 89 of Circuit Courts in Equity Actions. They were not entered in causes to foreclose vendor's liens.
2. A lien does not exist in favor of the seller of personal property for its purchase price after delivery.
3. When a written agreement is made between the seller of personal property and the purchaser to whom delivery is made of the thing sold and the purpose and intent of the parties as shown by the document, was to execute an instrument to secure the payment of a debt it will be deemed to be a mortgage and subject to the same restraints and forms as are prescribed in relation to mortgages.
4. A written executory contract of sale, where delivery of the possession of the chattel agreed to be sold is made to the purchaser, and under the provisions of such contract the seller has the option to forfeit and terminate the contract and retain all payments made and retake the thing agreed to be sold upon the happening of certain conditions, secures to the seller the alternative to enforce the payment of the balance of the purchase price of the thing agreed to be sold.
5. The exercise of the alternative by the seller is a renunciation of the option but not a cancellation of the contract which leaves the title to the thing agreed to be sold in *Page 715 the seller; for absolute title in the seller to a thing is inconsistent with an action to recover the debt due for its purchase.
6. The purchaser under such a contract, by paying part of the purchase price of the article and taking it into his possession, acquires an equitable interest in the thing agreed to be sold which may be the subject of an agreement between the parties subjecting it to a lien for the unpaid purchase price.
7. Under a contract of sale where the chattel sold is delivered to the purchaser but the seller retains the title to it with an option to retake it upon the happening of certain conditions and forfeit all payments made upon the purchase price of it the seller may exercise the alternative of proceeding against the purchaser for the collection of the unpaid balance of the purchase price and treat the contract as a lien upon the thing sold to secure such payment, because under such a contract the purchaser consents to the encumbrance upon his equitable interest in the chattel.
8. In the absence of any statutory provision declaring an instrument given to secure the payment of money to be a mortgage, a sale of personal property on the installment plan continuing title to the thing sold in the vender until all payments are made with a condition that upon the vendee's failure to make all payments the vendor shall have the right to a surrender of the property and forfeit all payments upon the purchase price of it he may elect to consider the property as security for the payment of the balance due.
9. Equity abhors a forfeiture and a court of equity, under some circumstances, has the power to declare "retain-title-contracts" to be a mere security and protect the purchaser from unconscionable forfeiture. *Page 716
Petition for rehearing denied. Suit was brought to enforce a lien predicated upon the following written instrument, it being alleged that complainant "does hereby elect to claim a lien upon property."
"ARTICLES OF AGREEMENT, Made this 15th day of October, in the year of our Lord one thousand nine hundred and nineteen BETWEEN the Sponge Exchange Bank, a corporation organized and existing under the laws of the State of Florida, at Tarpon Springs, Pinellas County, Florida, party of the first part, and F. E. Malone, of New York, party of the second part, WITNESSETH, That if the said party of the second part shall first make the payments and perform the convenants herein mentioned on his part to be made and performed, the said party of the first part hereby convenant and agree to convey and assume to the party of the second part, his heirs, executors, administrators or assigns in fee simple, clear of all incumbrances whatever, by a good and sufficient bill of sale, all of the furniture, fixtures and equipment belonging to the Tarpon Inn and now in the Tarpon Inn in Tarpon Springs, Florida, and the said party of the second part hereby convenants and agrees to pay to the said party of the first part the sum of Fifteen Thousand Dollars, in the manner following:
"One Thousand Dollars cash, the receipt of which is hereby acknowledged, and Three Thousand Dollars on or before March 15th, 1921, Three Thousand Dollars on or before March 15th, 1922, Three Thousand Dollars on or before March 15th, 1923, Three Thousand Dollars on or before *Page 717 March 15th, 1924, and Two Thousand Dollars on or before March 15th, 1925, with interest at the rate of six per centum, per annum payable annually on the whole sum remaining from time to time unpaid; and to pay all taxes, assessments or impositions that may be legally levied or imposed upon said property subsequent to the year 1918, and to keep the property insured in some company satisfactory to the party of the first part in a sum not less than $14000.00 during the term of this agreement. And in case of failure of the party of the second part to make either of the payments or any part thereof, or to perform any of the covenants on his part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and terminated, and the party of the second part shall forfeit all payments made by him on this contract; and such payments shall be retained by the said party of the first part in full satisfaction and liquidation of all damages by it sustained, and said party of the first part shall have the right to re-enter and take possession of the property aforesaid without being liable to any action therefor.
"The payments above set forth shall be covered by promissory notes of even date herewith, and for the time specified in the agreement above, and said notes to be payable at the Sponge Exchange Bank. The party of the second part however reserves the right to pay any or all of these notes at any time by paying the interest thereon at date of payment.
"It is Mutually agreed, by and between the parties hereto, that the time of payment shall be an essential part of this contract, and that all convenants and agreements herein contained shall extend to and be obligatory upon the heirs, *Page 718 executors, administrators and assigns of the respective parties.
"In Witness Whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written."
The contract was signed by both the vendor and the purchaser.
An answer filed for the defendant demanded "full and strict proof."
On September 11, 1923, the court decreed a foreclosure for the amounts due with attorney fees, and on November 19, 1923, a sale of the property was confirmed and a deficiency decree rendered.
On April 16, 1924, counsel who had not heretofore represented the defendant in the cause, made a motion "to set aside and vacate the final decree and the confirmation decree herein for that to-wit:
"(a) The final decree is void for lack of jurisdiction in the court as disclosed by the record to render such decree.
"(b) The allowance in the final decree of $1000.00 as attorney's fees is beyond the jurisdiction of the court and void.
"(c) The record discloses no fact constituting a cause of action within the jurisdiction of a court of equity.
"(d) The confirmation decree is void for lack of jurisdiction in the court as disclosed by the record to render such decree."
The motion was denied May 14, 1924, and the defendant took an appeal June 9, 1924, from the order denying the motion to vacate the final decree and the confirmation decree, upon the theory that the final decree is void and that the failure to appeal from such final decree within the time allowed by law is not material.
"It is the contention of the appellant that the final decree *Page 719 was void among other reasons for the following specific reasons:
"(1) That the bill of complaint clearly showed that the complainant had a clear, complete, adequate and specific remedy at law.
"(2) That the bill of complaint clearly showed that there was no element in the alleged cause of action to give a court of equity jurisdiction in that the cause of action alleged was one over which courts of equity never take jurisdiction — a cause of action entirely outside of equitable cognizance, — as equity jurisdiction is understood and administered in both England and America.
"(3) That even if equity had cognizance, or jurisdiction in such case the final decree as and when rendered was premature, and a nullity and void being in direct violation of Section 3135 of the Revised General Statutes, being rendered prior to any order for oral testimony before the Chancellor and prior to reducing to writing the testimony, and prior to filing the written testimony in the cause."
The portion of Section 3135, Revised General Statutes, 1920, referred to is as follows: "Oral examinations before the court shall only be had after order to that effect made by the court upon motion by either party. The testimony shall be taken down in writing, and filed in the cause."
As to the third point above made, counsel for appellant states that "the oral testimony was not taken and reduced to writing, nor was any filed in the cause," and contends that "the decree having been rendered upon oral testimony prematurely, before the prerequisites of the statute had been observed, before an order authorizing oral testimony had been rendered, and before the testimony had been reduced to writing, and before it had filed in the cause, was and is a mere nullity, unauthorized and void."
Section 3135 above quoted does not confer statutory *Page 720 powers, as in Wiggins v. Williams, 36 Fla. 637,18 South. Rep. 859, but merely regulates procedure by directing the method of taking and filing testimony in causes as to which the court has general jurisdiction. Statutory regulations as to service of process relate to the acquisition of jurisdiction of the parties litigant and must be observed. See Milton L. Inv. Co. v. Our Home L. Ins. Co., 81 Fla. 227, 87 South. Rep. 636.
It is clear that if the court had jurisdiction of the defendant and of the subject-matter with authority to render a decree in the cause, a failure to comply with the statute regulating the method of taking testimony and making the record in the cause, does not render the decree void. The subject-matter of the suit was the assertion of a lien predicated upon a contract of sale of personal property that was within the jurisdiction of the court.
A judgment that is absolutely null and void — mere brutumfulmen — can be set aside and stricken from the record on motion at any time, and may be collaterally assailed, but the judgment 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, and passes beyond the control of the courts to disturb. Einstein v. Davidson, 35 Fla. 342, 17 South. Rep. 563; Torrey v. Bruner, 60 Fla. 365, 53 South. Rep. 337; Lucy v. Deas,59 Fla. 552, 52 South. Rep. 515.
If the court has acquired jurisdiction of the subject-matter and of the parties, the judgment or decree entered is binding, even though erroneous, because of irregularity of procedure, and such judgment or decree will not be set aside, reversed, or modified, except by appropriate direct appellate procedure. Wilds v. State, 79 Fla. 575, *Page 721 721 South. Rep. 664; Hillsborough Grocery Co. v. Ingalls, 60 Fla. 105,53 South. Rep. 930.
Where a court has general jurisdiction of civil actions at law and also of all equity causes, and the subject-matter of a suit or action and the relief sought are within the jurisdiction of the court, whether it be a contract right in personal property or title to real estate or other civil matter, the question whether the relief sought should be by an action at law or by a suit in equity, does not ordinarily involve the power of the court to determine the matter, but it is rather a matter of procedure, at least where the right to a jury trial is not unlawfully denied; and if a suit in equity is brought when an action at law is the proper remedy, and the defendant, if duly served or appears, does not duly challenge the plaintiff's right to proceed in equity (Griffin, Adm'r v. Orman, 9 Fla. 22; Farrell v. Forest Inv. Co., 73 Fla. 191,74 South. Rep. 216; Dumont v. Fry, 130 U.S. 354, 505, 9 Sup. Ct. Rep. 486), or waives the right (Rivas v. Summers, 33 Fla. 539,15 South. Rep. 319; Williams v. Wetmore, 51 Fla. 614, text 624,41 South. Rep. 545), and the court does not sua sponte raise the question and dismiss the cause (Trustees I. I. Fund of Florida v. Gleason, 39 Fla. 771, 23 South. Rep. 539; McMillan v. Wiley, 45 Fla. 487, 33 South. Rep. 993; Micou v. McDonald,55 Fla. 776, 46 South. Rep. 291; 21 C. J. 168), 23 Wall 466; 16 How. 492) and a final decree is rendered, whether upon a decreepro confesso or upon a contest made, such decree if erroneous is not necessarily void; and after the time within which the complaining party might have secured a review by appeal, such party is not in general entitled to have the decree vacated upon motion on the ground that it is null and void. In such cases the court having jurisdiction of the parties and of the subject out of which the litigated right grows, and also jurisdiction to adjudicate rights *Page 722 in the premises, the enforcement of such rights at law or in equity depends upon the action of the parties and the acquiescence of the court, where there is no lack of power in the court to proceed to a final adjudication in the premises according to appropriate court procedure. See McMillan v. Wiley, 45 Fla. 487, 33 South. Rep. 993; 21 C. J. 162; Hillsborough Grocery Co. v. Ingalls, 60 Fla. 105,53 South. Rep. 930.
Courts of equity have general jurisdiction or power to enforce liens, and even though in a particular case the chancellor, having jurisdiction of the parties and the subject-matter, holds that a written instrument affords a lien when properly interpreted no lien is shown by the instrument itself or by proper allegations and permissible proofs concerning its import or intended purpose, yet a decree rendered in the cause enforcing a lien in the premises, is not void for want of jurisdiction or power to render it, though the decree may be erroneous and subject to reversal on appeal duly taken.
When a bill in equity is brought in a court of general equity and common law powers, to enforce a mortgage or other lien predicated upon a written instrument that taken alone or with the allegations of the bill, is not a mortgage, but is a conditional sale of personal property with no lien features, and the defendant appears and suffers a decree pro confesso to be rendered against him, or contests the merits or merely demands full and strict proof by the complainant, and a final decree is rendered to enforce a lien under the written instrument, such decree, though erroneous, is not void as for lack of jurisdiction in the court over the subject-matter or over the defendant; and if the defendant appears and does not challenge the right to proceed in equity and fails to seek relief by appropriate procedure, such as by bill of review or by appeal from the final decree *Page 723 within the time allowed by law, he is not entitled thereafter to have the final decree vacated upon motion on the ground that it is void. See 21 C. J. pp. 34 and 162; 1 Pomeroy's Eq. Juris. 129, 130, 131; Miller v. Rowan, 251 Ill. 344, 96 N.E. Rep. 285; Hunt v. Hunt, 72 N.Y. 217, text 229, 28 Am. Rep. 129, text 137; Tonnele v. Wetmore, 195 N.Y. 436, 88 N.E. Rep. 1068. See also Order of United Commercial Travelers of America v. Bell,62 Fla. 565, 56 South. Rep. 910; Torry v. Bruner, 60 Fla. 365,53 South. Rep. 337; Lucy v. Deas, 59 Fla. 552, 52 South. Rep. 515; Day v. Hurchman, 65 Fla. 186, 61 South. Rep. 445; Howell v. Commercial Bank, 51 Fla. 460, 40 South. Rep. 76; DeCottes v. Clarkson, 43 Fla. 1, 29 South. Rep. 442; Lee v. Patten, 34 Fla. 149,15 South. Rep. 775; 12 Ency. Pl. Pr. 187, 196; 21 C. J. 166; People ex rel. Gaynor v. McKane, 28 N.Y. S. 981; Williams v. Wetmore, 51 Fla. 614, text 624, 41 South. Rep. 545; Venner v. Great Northern Ry. Co. 153 Fed. Rep. 408, text 413 et seq.; Hill v. St. Louis N.E. R. Co., 243 Ill. 344,90 N.E. Rep. 676; Hatcher v. Hendrie Boltholl Mfg. Supply Co., 133 Fed. Rep. 267, 68 C.C.A. 19; 23 Cyc. 1074, 1094; Johnson v. McKinnon, 54 Fla. 221, 34 South. Rep. 23; Rushing v. Thompson's Exr., 20 Fla. 583; 23 Cyc. 1055, 1074, 1094; Lee v. Patten,34 Fla. 149, 15 South. Rep. 775; 34 C. J. 552, 560; 12 Ency. Pl. Pr. 119, 193, Griffin v. Orman, 9 Fla. 22; 21 C. J. 162; Tubb v. Fort, 58 Ala. 227.
Where the court had not acquired jurisdiction of the defendant, the decree is void. Ex parte Nightingale, 12 Fla. 272; Zehnbar v. Spillman, 25 Fla. 591, 6 South. Rep. 214; Shaw v. Gregoire, 41 Mo. 407. See L.R.A. 1918B 511.
The equitable cognizance asserted was duly challenged or an appeal was taken in Freeman v. Timanus, 12 Fla. 393; Cavedo v. Billings, 16 Fla. 261; Finnegan v. City of *Page 724 Fernandina, 18 Fla. 127; Griffin v. Orman, 9 Fla. 22; McKeown v. Coogler, 18 Fla. 866; Haynes v. McGehee, 17 Fla. 159; H. W. Metcalf Co. v. Martin, 54 Fla. 531, 45 South. Rep. 463; Simmons v. Williford, 60 Fla. 359, 53 South. Rep. 452; McKinnon v. Johnson, 54 Fla. 538, 45 So. Rep. 451; Johnson v. McKinnon,45 Fla. 388, 34 South. Rep. 272; Smith v. Powell, 80 Fla. 166,85 South. Rep. 654; McMillan v. Wiley, 45 Fla. 487,33 South. Rep. 993; Betts Co. v. South Georgia R. Co., 69 Fla. 46,67 South. Rep. 861; Trustees I. I. Fund of Florida v. Gleason, 39 Fla. 771,23 South. Rep. 539, and other like cases. In Johnson v. McKinnon, 54 Fla. 221, 45 South. Rep. 23, there was no authority to render a deficiency decree. See also Fithian v. Monks, 43 Mo. 502; Simonson v. Blake, 20 How. Pr. (N.Y.) 484. See now Chap. 7839, Acts of 1919.
"All liens of any kind, whether created by a statute or the common law, and whether heretofore regarded as merely possessory or not, may be enforced by proceedings in chancery. Sec. 3228, Rev. Gen. Stats. 1920.
Where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void. Elliott v. Pierson, 1 Peters, (U.S.) 328, text 340.
In many cases, the question of jurisdiction is considered as distinct from that of power. We often find the jurisdiction denied, where the power exists, but ought not to be exercised, and in this sense is the word jurisdiction usually used, when applied to courts of chancery. Where there is a want of power, the decree is void collaterally, but where there is said to be a want of jurisdiction merely, it is only meant that it would be erroneous to exercise the power, and the decree would be reversed on appeal. It means a *Page 725 want of equity, and not a want of power. In commenting on this distinction the Court of Appeals of New York, in Banks v.Duckenfield, 18 N.Y. R. 502, said, "There are, I apprehend, few cases in which that position (that the decree is void for want of power) could be affirmed, in respect to a court possessing general jurisdiction in law and equity on grounds relating to the subject-matter of the controversy." Curtiss v. Brown,29 Ill. 201, text 231.
"Jurisdiction," in the strict meaning of the term, as applied to judicial officers and tribunals, means no more than the power lawfully existing to hear and determine a cause. It is the power lawfully conferred to deal with the general subject involved in the action. Bouv. Law Dict; And. Law Dict. It does not depend upon the ultimate existence of a good cause of action in the plaintiff, in the particular case before the court. "It is the power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case." Hunt v. Hunt, 72 N.Y. 217. "Jurisdiction does not relate to the right of the parties, as between each other, but to the power of the court. The question of its existence is an abstract inquiry, not involving the existence of an equity to be enforced nor the right of the plaintiff to avail himself of it, if it exists. It precedes those questions, and a decision upholding the jurisdiction of the court is entirely consistent with a denial of any equity in the plaintiff, or in any one else.' People v. Sturtevant,9 N.Y. 263." People ex rel. Gaynor v. McKane, 28 N.Y. S. 981, text 982.
There is a clear distinction between the term "jurisdiction," in its strict meaning, and as generally used in equity jurisprudence. In its strict meaning, as I have stated, it imports only the power residing in a court to hear and determine an action. But, as applied to the power of a *Page 726 court of equity, it is ordinarily used with more limited signification and imports, not the power to hear and decide, but the cases or occasions when the power will be exercised. This distinction, while clearly pointed out in the best works on equity jurisprudence, has not always been observed in judicial opinions; and the expression "jurisdiction" has been used when the writers want only to inquire whether the facts before the court presented a case for the proper exercise of the power of a court of equity. Mr. Pomeroy has very clearly pointed out the distinction here referred to. 1 Pom. Eq. Jur. 129-131. The term "equity jurisdiction," he says, "is used in contradistinction to 'jurisdiction' in general, and to 'common-law jurisdiction' in particular. * * *. 'Equity jurisdiction,' in its ordinary acceptation, as distinguished from the general power to decide matters at all, and from the 'common-law jurisdiction,' is the power to hear certain kinds and classes of causes, according to the principles of the method and procedure adopted by the courts of chancery, and to decide them in accordance with the rules of equity jurisprudence. * * * If a court clothed with the equity jurisdiction, as thus described, should hear and decide, according to equitable methods, a case which did not fall within the scope of equitable jurisprudence, such judgment, however erroneous it might be, and liable to reversal, would not necessarily be null and void. * * * Equity jurisdiction may exist over a case, although it is one in which the doctrine of equity jurisprudence forbids any relief to be given, or any right to be maintained. This conclusion is very plain, and even commonplace. Yet equity jurisdiction is constantly confounded with the right of plaintiff to maintain his suit, and obtain his equitable relief; thus, in fact, making the power to decide whether equitable relief should be granted depend upon the actual granting of such relief." People ex rel. Gaynor v. McKane, supra, p. 985. *Page 727
"Jurisdiction of the subject-matter of an action is a power to adjudge concerning the general question involved therein, and is not dependent upon the state of facts which may appear in a particular case, or the ultimate existence of a good cause of action in the plaintiff therein.
"A judgment rendered by a court having power lawfully conferred to deal with the general subject involved in the action, and having jurisdiction of the parties, although against the facts or without facts to sustain it, is not void as rendered without jurisdiction, and cannot be questioned collaterally." Hunt v. Hunt, 72 N.Y. 217. "Jurisdiction of the subject-matter does not depend upon the ultimate existence of a good cause of action in the plaintiff in the particular case. (See Gorenvelt v. Burwell, 1 Ld. Raym., 466, 467.) * * * Jurisdiction of the subject-matter, is power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case, arising, or which is claimed to have arisen, under that general question. One court has jurisdiction in criminal cases; another in civil cases; each in its sphere has jurisdiction over the subject-matter. Yet the facts, the acts of the party proceeded against, may be the same in a civil case as in a criminal case — as, for instance, in a civil action for false and fraudulent representations and deceit, and in a criminal action for obtaining property by false pretenses. We should not say that the court of civil powers had jurisdiction of the criminal action, nor vice versa, though each had power to pass upon allegations of the same facts. So that there is a more general meaning to the phrase "subject-matter," in this connection, than power to act upon a particular state of facts. It is the power to act upon the general, and so to speak, the abstract question, and to determine and adjudge whether the particular facts presented *Page 728 call for the exercise of the abstract power." Hunt v. Hunt,supra, pp. 229, 230.
"Jurisdiction does not relate to the right of parties, as between each other, but to the power of the court. The question of its existence is an abstract inquiry, not involving the existence of an equity to be enforced, nor the right of the plaintiff to avail himself of it if it exists. It precedes these questions, and a decision upholding the jurisdiction of the court is entirely consistent with a denial of any equity, either in the plaintiff or in any one else." People ex rel. Davis v. Sturtevant, 9 N.Y. 263, text 269.
"Jurisdiction of the subject-matter is the power to adjudge concerning the general question which is involved, and if a bill in chancery states a case belonging to a general class over which the authority of the court extends, jurisdiction attaches, and the judgment, however erroneous, is not void, but is binding upon the parties until reversed or annulled in a direct proceeding and is not open to collateral attack.
"Want of jurisdiction of the subject-matter is to be distinguished from an erroneous exercise of jurisdiction, as in the former case the want of jurisdiction renders the judgment void and open to collateral attack, whereas an erroneous exercise of jurisdiction merely renders the judgment open to reversal on appeal or writ of error." Miller v. Rowan, 251 Ill. 344,96 N.E. Rep. 285, 15 C. J. 729.
"The term 'jurisdiction' had a peculiar and somewhat technical use in its application to courts of general equitable jurisdiction. It related not to the naked question of power, but rather to the fact that such power had or had not been usually exercised. Thus, the question presented to a court of equity by the objection that the complaining party had a full, adequate, and complete remedy at the common law, related to the jurisdiction of *Page 729 the court of equity, and is constantly spoken of in the cases in that way. But so far was it from presenting the question of mere power, that if the objection was neither taken by demurrer, plea nor answer, the court proceeded and gave judgment on the merits, notwithstanding it would have rejected the jurisdiction had the question been raised at the right time. This points to the true line of distinction in the use of the term 'jurisdiction.' The question is properly one of jurisdiction, only when a judgment asserting the power of the court would be void and assailable collaterally, in every other court. There are, I apprehend, very few cases in which that position could be affirmed in respect to a court possessing general jurisdiction in law and equity, on grounds relating to the subject-matter of a controversy. If the Court of Chancery had originally decided the cases cited the other way, no court would collaterally have examined the correctness of the decree. They might in that case, and we may assume would, have reversed on appeal, but the reversal would have proceeded on the ground that they were erroneous judgments — not void judgments — and would not have denied the authority of the court to make a decree, but would have asserted a want of equity in the case of the complainant." Bangs v. Duckingfield, 18 N.Y. 592, text 595, 596.
"Technically, jurisdiction is the power to hear and determine the subject-matter in controversy between the parties to a suit, and jurisdiction as thus defined does not mean simply jurisdiction of a particular case but jurisdiction of the class of cases to which the particular case belongs. It is common, however, to speak of jurisdiction in equity or the jurisdiction of a court of equity as not relating to the power of the court to hear and determine a cause, but as relating to whether it ought to assume the jurisdiction and hear and decide the cause. This distinction *Page 730 is important and should not be lost sight of." 21 C. J. p. 34.
Jurisdiction of a court of equity does not depend upon the sufficiency of the bill, and if the court has jurisdiction of the parties and of the subject-matter, the fact that the cause of action is defectively stated does not oust the court of jurisdiction.
"Jurisdiction of the subject-matter does not mean jurisdiction of the particular case but of the class of cases to which the particular case belongs, and does not depend upon the sufficiency of the pleadings nor the rightfulness of the decision." O'Brien v. People ex rel. Kellogg Switchboard and Supply Co., 216 Ill. 354; People v. Kizer, 151 Ill. App. 6; International Paper Co. v. Bellows Falls Canal Co., 91 Vt. 350,100 Atl. Rep. 684; Wadhams Oil Co. v. Tracy, 141 Wis. 150,123 N.W. Rep. 785.
"If the defect of jurisdiction springs from want of power the result is void; if from inexcusable departure from established principles governing the exercise of judicial power, it is erroneous and may and ought to be set aside upon appeal regardless of the attitude of counsel in respect thereto upon either side.
"Want of judicial power as to a particular subject of action renders relief granted to the plaintiff open to challenge, directly or indirectly, as void. Abuse of power in the sense of inexcusable departure from established principles in the exercise of judicial authority, leaves the result binding upon the parties interested till set aside in some appropriate judicial proceeding. Harrigan v. Gilchrist, 121 Wis. 127, text 132, 99 N.W. Rep. 909.
"A court which is competent by its constitution to decide on its own jurisdiction, and to exercise it to a final judgment, without setting forth in its proceedings the facts and evidence on which it is rendered, whose record is absolute *Page 731 verity not to be impugned by averment or proof to the contrary, is of the description of courts whose judgments are conclusive if not removed to an appellate court. There can be no judicial inspection behind the judgment, save by appellate power." Sessions v. Stevens, 1 Fla. 233, text 241.
"To authorize the assertion that a judgment is void it must have emanated from a court of limited jurisdiction not acting within its legitimate prerogative or from a court of general jurisdiction where the parties are not actually or by legal construction before the court and subject to its jurisdiction.
"Judgments of courts of general jurisdiction are not considered under any circumstances as mere nullities, but as records importing absolute variety, and of binding efficacy until reversed by a competent appellate tribunal. They are voidable, not void," Ponder v. Moseley, 2 Fla. 207, 48 Am. Dec. 194; and other cases cited in 17 Am. Eng. Ency. L., (2nd ed.) 1042.
"There is a distinction between those facts which involve the jurisdiction of the court over the parties and subject-matter and those quasi-jurisdictional facts, without allegation of which the court cannot properly proceed, and without proof of which decree should not be made; absence of the former renders the judgment void and assailable collaterally, but not so as to the latter." 23 CYC, p. 1074.
"It is a well settled rule that jurisdiction being obtained over the person and the subject matter, no error in its exercise can make the judgment void. The authority to decide being shown, it cannot be divested by being improperly or incorrectly employed." Freeman on Judg., 135, and notes. See Stephenson v. Kutley U.S. —, decided Nov. 16, 1925; Day v. Hurchman 65 Fla. 186. *Page 732
"Jurisdiction of the subject-matter is the power lawfully conferred to deal with the general subject involved in the action." Hunt v. Hunt, 72 N.Y. 217, 28 Am. Rep. 129; 1 Pomeroy's Eq. Jur. (4th ed.) 129, p. 155 Note.
"Jurisdiction of the subject-matter is the power to hear and determine cases of the general class to which the proceedings in question belong; the power to deal with the general subject involved in the action; and, as used in the constitutions and statutes, the word 'jurisdiction' means jurisdiction as to the subject matter only, unless an exception arises by reason of its employment in a broader sense. Such jurisdiction the court acquires by the act of its creation, and possesses inherently by its constitution; and it is not dependent upon the sufficiency of the bill of complaint, the validity of the demand set forth in the complaint, or plaintiff's right to the relief demanded, the regularity of the proceedings, or the correctness of the decision rendered. 15 C. J. pp. 734, 735; O'Brien v. Peo., 216 Ill. 354, 75 N.E. Rep. 108, 108 Am. St. Rep. 219, 3 Ann. Cas. 966; State v. Smith, 21 R.I. 513,72 A. 710;" Cooper v. Reynolds, 10 Wall. (U.S.) 308; Hope v. Blair,105 Mo. 85, 16 S.W. Rep. 595; Dow v. Johnson, 100 U.S. 158.
"Jurisdiction of the subject matter is the power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power. It is not confined to cases in which the particular facts constitute a good cause of action, but it includes every issue within the scope of the general power vested in the court by the law of its organization to deal with the abstract question. Foltz v. St. Louis, etc. R. Co., 60 Fed. 316, 8 CCA 635." 15 C. J. p. 735, Note 94a. Brown *Page 733 on Jurisdiction (2nd ed.) 3; Hope v. Blair, 105 Mo. 85,16 S.W. Rep. 595, 24 Am. St. Rep. 366.
"The test of jurisdiction is whether the tribunal had the power to enter on the inquiry, and not whether its methods were regular, its findings right, or its conclusions in accordance with law." 15 C. J. pp. 735, Note 2 a., Radil v. Sawyer,85 Neb. 235, 122 N.W. 980.
"Equity jurisdiction," in its ordinary acceptation, as distinguished on the one side from the general power to decide matters at all, and on the other from the jurisdiction "at law" or "common-law jurisdiction," is the power to hear certain kinds and classes of civil causes according to theprinciples of the method and procedure adopted by the court of chancery, and to decide them in accordance with the doctrines and rules of equity jurisprudence, which decision may involve either the determination of the equitable rights, estates, and interests of the parties of such causes, or the granting of equitable remedies. In order that a cause may come within the scope of the equity jurisdiction, one of two alternatives is essential; either the primary right, estate, or interest to be maintained, or the violation of which furnishes the cause of action, must be equitable rather than legal; or the remedy granted must be in its nature purely equitable, or if it be a remedy which may also be given by a court of law, it must be one which, under the facts and circumstances of the case, can only be made complete and adequate through the equitable modes of procedure. At the same time, if a court clothed with the equity jurisdiction as thus described should hear and decide, according to equitable methods, a case which did not fall within the scope of the equity jurisprudence, because both the primary right invaded constituting the cause of action and the remedy granted were wholly legal, and belonging properly to the domain of the law courts, such *Page 734 judgment, however erroneous it might be and liable to reversal, would not necessarily be null and void. On the contrary, the objection that the case does not come within this so-called equity jurisdiction must ordinarily be definitely raised by the defendant at the commencement of the proceedings, or else it will be regarded as waived, and the judgment will not even be erroneous. In some instances, however, where the equitable functions of the court are specifically defined by statute, or the facts show very clearly that the rights involved in the controversy and the remedies demanded are purely legal, and completely within the scope of ordinary legal proceedings, the court of equity will itself take the objection at any stage of the cause, and will dismiss the suit, although no objection has in any way been raised by the parties.
If the court has jurisdiction over the subject-matter of equitable rights, interests, and remedies, its jurisdiction does not depend upon its deciding correctly as to the existence of such rights, or as to the granting of such remedies. The jurisdiction itself exists independently of the particular case over which it is exercised; jurisdiction, in its most general and accurate sense of a power to decide concerning certain subject-matter, involves the power to decide wrongly as well as correctly." 1 Pom. Eq. Jur. (4th ed.) 130 and note, 3; Hunt v. Hunt, 72 N.Y. 217; People v. Ny. Sam Chung, 94 Cal. 304,29 Pac. Rep. 642, 28 Am. St. Rep. 129.
"As distinguished from objections to jurisdiction involving the constitution of courts, the necessity of the presence of the person or the res within the territorial limits of the court's power, and process and service, and aside from certain more or less arbitrary limitations and restrictions, an objection to the jurisdiction of equity resolves itself into an assertion of the existence of an adequate *Page 735 remedy in the courts of law or in other duly constituted tribunals other than courts of equity. By reason of the fact that equity jurisdiction had its origin in the inadequacy of legal remedies, this objection is usually spoken of as jurisdictional. And in a sense this terminology is correct, as the objection negatives the very foundation of the right to equitable relief, and goes not only to the lack of some element essential to relief under some established head of equity, but may amount to an assertion that the subject matter is entirely without the established field of equity jurisprudence, and may involve an insistence upon the fundamental right of trial by jury. But nevertheless it goes to the propriety of acting rather than to the power to act. And thus, in its final analysis, it may be said to invoke merely a rule of convenience, whereby a court of equity may prevent matters purely cognizable at law from being drawn into chancery at the will of the parties, and hold them to a waiver in the absence of proper and timely objection, but at the same time may reserve to itself a judicial discretion to deny relief even in the absence of such objection."
"The objection that the plaintiff has an adequate remedy at law is no more than a rule of practice in the court of chancery, upon which the action will be dismissed if the attention of the court is called to it at the proper time and in the proper manner; and although it is most frequently spoken of by courts and writers as a question of jurisdiction it is strictly inaccurate to call it so. There is no want of jurisdiction, and should the court erroneously proceed, after objection properly taken, according to its own rule, it is very clear that the judgment would not be void. It might be erroneous, and subject to reversal in a direct proceeding, but it could not be collaterally impeached or *Page 736 disregarded." Peck v. Beloit School Dist. No. 4, supra, 21 C. J. p. 162, and note 30.
The absence of precedents, or novelty of incident, present no obstacle to the exercise of the jurisdiction of a court of equity. 21 C. J. 35. But, if needed, apparent, if not real, precedents are found in Aycock Bros. Lumber Co. v. First Nat. Bank of Dothan, 54 Fla. 604, 45 South. Rep. 501; Varn v. Ashbrook, 84 Fla. 626, 94 South. Rep. 384; Howell v. Commercial Bank, 51 Fla. 460, 40 South. Rep. 76. 11 C. J. 413; Ballinger v. West Pub. Co., 44 App. Cas. (D.C.) 49; 136 U.S. 268; 17 A.L.R. 1421 Notes.
The statement in Section 10, page 9, Story Equity Pleading, that "the bill must state a case within the appropriate jurisdiction of a court of equity;" that "consent cannot confer a jurisdiction not vested by law" and that "the court itself cannot act except upon its own intrinsic authority in matters of jurisdiction; and every excess will amount to usurpation, which will make its decretal orders a nullity, or infect them with ruinous infirmity," refers to Section 473 note (a) which deals with objections to equitable cognizance by the parties or by the court sua sponte, and states that "an adequate legal remedy, excluding the jurisdiction of equity, exists, e. g., in the following forms of proceedings in an action of assumpsit or tort (citing cases); in ejectment (citing cases); in replevin (citing cases); by writ of entry (citing cases); by quowarranto (citing cases); by mandamus (citing cases);" c., which clearly indicates that the statements of the text have no reference to a case stated in the form of a bill in chancery predicated upon a contract for the sale of property in which the complainant asserts an equitable right and prays for an equitable remedy as in this case. In the cases cited or referred to above the decrees were not held to be void, but *Page 737 as the right to proceed in equity was duly challenged, equity cognizance was withheld.
This proceeding is in form a bill in chancery to enforce a lien. The subject matter is a contract for the sale of personal property with mutual or correlative agreements signed by the vendor and by the purchaser. The property is within the jurisdiction of the court. The complainant sets up the contract, its breach and an election to take a lien and prays that the asserted lien be enforced. The defendant, an adult man, appeared, and by answer merely demanded "full and strict proof" of the allegations of the bill of complaint and made no defense. This was a voluntary submission to the jurisdiction of the court and a waiver of any and all objections, if any, to the form of the proceeding, to the sufficiency of the pleading and to the authority of the court to proceed to a determination of the equitable rights and remedies set up in the bill of complaint. See Rivas v. Summers, 33 Fla. 539,15 South. Rep. 319.
The Circuit Court having general equity as well as common law powers, had authority to adjudicate an equitable right or a lien in property and to afford an equitable remedy; and having jurisdiction of the parties and of the property, if error be committed in declaring an equitable right or a lien or in giving an equitable remedy, the decree, though erroneous, is not void. The record does not show a lack of jurisdiction. Finley v. Chamberlin, 46 Fla. 581, 35 South. Rep. 1.
The bill of complaint alleges the execution of the contract for the sale of the personal property, the complainant's right in the premises and the failure to pay the purchase price as agreed, and alleges that defendant has had possession and use of the personal property for nearly four years; that it has been damaged and depreciated by use, wear and tear, and complainant would not be adequately *Page 738 indemnified for the breaches of defendant by re-taking the property and that the complainant "does hereby elect to claim a lien upon the said personal property for the balance of the purchase price due and payable." The allegations of the bill of complaint at least raise a question of an equitable right or an equitable remedy; and an erroneous decision thereon does not affect the power or jurisdiction of the court to proceed in the cause the defendant having appeared therein.
There is no contention that the constructive service of process upon the defendant was not duly made or that the defendant did not appear and answer by counsel in the cause, and "pray that said complainants be required to make full and strict proof of each and every allegation contained in said bill of complaint."
When a bill in chancery is brought in a court of general equity and common law powers to enforce a lien claimed under a contract for the sale of personal property that is within the jurisdiction of the court, the allegations of the bill of complaint do not determine the power of the court to adjudicate a controversy in the premises, though the allegations may enable the court, by the application of controlling provisions or principles of law, to determine upon proper challenge orsua sponte whether the remedy sought should be in an equity or a law forum; consequently the judicial power of the court to adjudicate the controversy is not dependent upon the sufficiency of the allegations of the bill of complaint to show a right to proceed in equity or to equitable relief as to the right or remedies demanded; and if the court has jurisdiction of the property involved and of the parties with power to decree or to enforce a lien in cases of that nature, the court may adjudicate the matter according to equity procedure and its decree will not be void even if it be erroneous; and this is true whether *Page 739 the final decree is rendered upon decree pro confesso or upon contest made and whether the right to proceed in equity is challenged or not, and whether the challenge is sustained or not; and if the decree rendered is not reversed on appeal or superseded on bill of review or upon other proceedings duly taken within the time required by law, it is binding upon the parties and is not amenable to a motion to vacate on the ground that the decree is void for lack of jurisdiction.
In this case the court of general equity powers had jurisdiction of the personal property the subject-matter of the contract of sale that was sought to be enforced as a lien upon the property. The defendant appeared generally in the cause and merely demanded "full and strict proof." The court had power to decree an equitable lien or to enforce a contract lien upon the property; and even if the decree rendered be erroneous because the facts shown did not give a right to an equitable or to a statutory lien and the instrument did not give a contract lien, or because of material irregularities in the procedure had in the cause, the jurisdiction of the court is not thereby affected, and the decree rendered is not void, even if it be erroneous and could have been reversed on appeal. The power to render a decree in equity includes power to make an erroneous decree as well as a correct decree, the party aggrieved by an erroneous decree having remedy by appeal or by bill of review. Judicial power to adjudicate is not affected by an erroneous adjudication. The power to adjudicate is conferred by law. Error in the exercise of power conferred by law does not affect the law conferring the power to adjudicate. Failure to have a merely erroneous decree reversed by due course of law does not render the decree void. If a decree is not void when rendered it does not become void because it was not corrected by appeal; and it may be enforced though it is erroneous and might have been reversed by *Page 740 proceedings duly taken by the aggrieved party. See Tonnele v. Wetmore, 195 N.Y. 436, 88 N.E. Rep. 1068; Einstein v. Davidson,35 Fla. 342, 17 South. Rep. 563; 15 R. C. L. 864; 34 C. J. 511.
Whether the provisions of the instrument in this case tend to show a conditional sale with a stipulated remedy for a breach, rather than a right to a lien, need not be discussed here.
The appeal in this case is not from the final decree, but from an order denying a motion to vacate the final decree on the ground that it is void. The final decree adjudicating that the instrument affords a lien is not void and is therefore binding on the parties, because the court had jurisdiction of the parties and of the subject-matter with power to render a decree in the premises, and the decree rendered was not appealed from within the time allowed by law. Even if erroneous, the decree rendered was within the judicial power of the court; and the error therein, if any, was not remedied by appeal or bill or review.
As the instrument was adjudged to afford a lien, the deficiency decree was an incident in the proceeding under Chapter 7839, Acts of 1919, which statute does not clearly appear to be invalid, its provisions being matter properly connected with the subject expressed in the title of the act; and even if for any reason that portion of the final decree is erroneous, it is not void, a deficiency decree being authorized and within the power of the chancellor. The contract of sale herein was dated October 15th, 1919, and Chapter 7839 became effective June 7, 1919.
In view of the stipulation as to liquidated damages and the other provisions of the contract, and of the purchase of the property for a relatively small sum by the complainant at the judicial sale the amount of the deficiency decree appears to be inequitable, but that does not render the decree void. *Page 741
The vendee defendant contracted in the purchase money notes "to pay all costs of collection, including a reasonable attorney's fee." He did not contest the amount of the attorney fee allowed by the court and the decree states that the court "heard evidence as to the amount of a reasonable attorney's fee to be allowed to complainant's solicitors." Irregularity of error, if any, in the ascertainment and award of the attorney fees does not render the decree void so as to make it subject to a motion to vacate.
It cannot be said that the chancellor was without power to adjudicate a lien or to adjudge the instrument in this case to be a lien; or that the chancellor had no authority to render a deficiency decree or to adjudicate an attorney fee in the premises. Errors, if any, in the proceedings do not render the decree void. This is a hard case, but no authority or principle has been adduced showing the decree to be void. Lucy v. Deas,59 Fla. 552, 52 South. Rep. 515.
The order denying the motion "to set aside and vacate the final decree and the confirmation decree" on the ground that each of such decrees is void, is affirmed.
TERRELL AND BUFORD, J. J., concur.
ELLIS AND STRUM, J. J., concur in the opinion.
BROWN, C. J., dissents.