On Rehearing.
Opinion filed September 28, 1932.
Davis, J.On April 19, 1932, the final decree appealed from in this case was affirmed by a majority of this Court, one justice dissenting and one justice not participating. See foregoing opinion rendered April 19,1932, 141 So. 124. Thereafter a petition for rehearing was filed by the appellants. Rehearing was granted and argument had before the Court en banc. The case is now before us for disposition on rehearing.
The petition fo'r rehearing takes exception to certain portions of the Court’s opinion, wherein it is alleged there was an erroneous statement of some of the facts. For the purpose of correcting any such erroneous statement of the facts, the following re-statement of them is no'w made:
A man named Patterson died in Dade County over twenty years ago, leaving his widow and a minor daughter surviving him. At the time of his death he owned title to the lands involved in this foreclosure suit. A Doctor Jackson of Miami was appointed guardian for the minor child by *264the Probate CoUrt of Dade County. Thereafter, the guardian filed a petition for leave to sell real estate in which the minor child had an interest, which leave was granted.
The order entered by the County Judge authorized the guardian to sell “all the right, title, interest and claim of Annie Lester Patterson, a minor,” in the property in question. The guardian reported that he had sold the property to George E. Merrick for $20,000, to be paid on the following terms and conditions:
“Two Thousand Dollars ($2,000) cash and Eighteen Thousand Dollars ($18,000) in five (5) years, together with interest at the rate of Eight Percent. (8%) per annum, payable semi-annually on all deferred payments; said deferred payments to be secured by a purchase money mortgage on said property, which said sum was paid for the entire title to the said property, two-thirds of which the said Annie Lester Patterson, a minor, is entitled to receive and will receive, and the other one-third of the said Twenty Thousand Dollars ($20,000) being paid to Jessie B. Markley, formerly Jessie B. Patterson, widow of Samuel L. Patterson and mother of Annie Lester Patterson, a minor.”
The County Judge entered an order upon the foregoing report of sale and confirmed it. This order contained a provision which read as follows:
“That James M. Jackson in his capacity as guardian of Annie Lester Patterson, a minor, be and he hereby is authorized and empowered to execute and deliver a deed of conveyance to the said George E. Merrick, conveying all of the right, title and interest owned by the said Annie Lester Patterson, a minor, in and to the above described property and to' take back a purchase money mortgage constituting a first lien against the property for all deferred payments.”
Pursuant to this order a single deed was executed by Jackson as guardian, joined by the widow, Mrs. Markley, and her husband. This single joint deed was made and delivered to George E. Merrick as grantee. In exchange *265therefor Merrick paid the $2,000 in cash and executed and delivered one note payable to James M. Jackson, Jr., as guardian of the estate of Annie Lester Patterson, a minor, for $12,000 payable five years after date, and another note payable to Jessie B. Markley for $6,000. maturing on or before five years after date.
To secure both and each of said purchase money notes, Merrick executed one purchase money mortgage to James M. Jackson, Jr., as guardian of the estate of Annie Lester Patterson, a minor, and Jessie B. Markley, individually. This was in literal compliance with the order of the Court which had authorized delivery of the deed upon the taking back of a purchase money mortgage to secure “all deferred payments.”
This original purchase money mortgage was misplaced and never filed for record. Thereafter, in order to evidence the terms and conditions of the misplaced mortgage, Merrick executed two mortgages, each dated August 4, 1923, each acknowledged September 30, 1926, identical in their terms, one of them being executed to James M. Jackson, Jr., as guardian of Annie Lester Patterson, a minor, and the other being executed to Jessie B. Markley, individually. The bill of complaint alleges and the lower Court in effect found that the execution of these two! subsequent mortgages was in order to evidence the terms and conditions of the misplaced single mortgage which had originally been executed for the purpose of securing “all deferred payments” on the land which Merrick was purchasing from Annie Lester Patterson, a minor, and Jessie B. Markley, individually, as joint grantors.
The original purchase money notes were not paid at their maturity. In the meantime, Annie Lester Patterson had become of age and married Fred W. Warner. In consequence of the non-payment of the notes Jessie B. Markley, *266the widow, and Annie Lester Patterson, instituted suit for foreclosure of the original purchase money mortgage.*
While the new mortgages which had been executed by Merrick, as hereinbefore stated, were referred to' in the bill for foreclosure, it is specifically shown that they were so referred to only for the purpose of evidencing the terms of the original mortgage as a basis for its re-establishment and foreclosure.
All of the defendants in the foreclosure ease claim interests in the property through George E. Merrick. George E. Merrick in turn acquired his title through the deed which had been executed on behalf of the minor by her guardian, joined in by Mrs. Markley and her husband.
The answer of the defendants merely deny the priority of complainants’ claim to foreclosure as against their respective interests. No attempt was made by any of the defendants in their pleadings to assert that the two mortgages which had been subsequently executed by Merrick were given for any other purpose than to' evidence the terms of the original mortgage. No question of merger of the original mortgage, or of its release, by reason of the execution and delivery of the two new mortgages was therefore presented by the pleadings on behalf o'f the defendants.
Just before the trial the original unrecorded mortgage was found. This mortgage upon-being properly identified was thereupon introduced in evidence. The Chancellor entered a decree foreclosing the original mortgage and adjudged that the lien thereof was superior to the claims and interest o'f George E. Merrick, and each and every of the defendants in the case, all of whom were claiming under him.
The defendants appealed from thjs final decree, which *267appeal resulted in the previous affirmance of the decision of the lower Court.
The Chancellor held that under the facts and circumstances presented by the record, defendants were charged with notice of the existence of the unrecorded purchase money mortgage, and that the lien of such original purchase money mortgage had not become extinguished because of the giving by Merrick and the filing for record of the two subsequent evidentiary mortgages whose terms appear to be slightly variant from those of the original mortgage. This Court heretofore sustained the Chancellor in such findings. Our further consideration of the ease on rehearing confirms our view heretofore expressed to the effect that the Chancellor was correct in so holding.
No new purchase money notes were ever given, but it appears that the debt which was enforced through the decree of foreclosure was the original purchase-money debt evidenced by the original purchase-money notes, which were required to be given under the order authorizing the conveyance by the guardian of the minor’s title. The entire transaction, so far as the minor was concerned, constituted a sale of the minor’s real property which, in order to be valid, was required to strictly comply with the order of the Court permitting and authorizing such sale. The order authorizing the guardian to sell for money and to take a first lien purchase money mortgage to secure deferred payments. This being true, there could not have been any novation by the act of the guardian alone without the further order of the Probate Coiirt. Consequently, appellants’ contentions as to merger and novation must fail, not only because of this pertinent circumstance, but for the additional reason that no such question was raised or presented on behalf of the defendants by their pleadings.
The Chancellor evidently found, and this Court in its first decision held, that the guardianship proceedings, to*268gether with the guardian’s deed, constituted one single muniment of title. The guardian’s deed could not lawfully have been executed and delivered by the guardian without the execution and delivery of the notes and first lien mortgage evidencing and securing the unpaid purchase money. Every assertion of the existence of the guardian’s deed and of its validity necessarily includes an assertion of the existence of the purchase money notes and first lien mortgage securing them, the existence of which is indispensable to sustain the validity of the guardian’s deed.
The Chancellor found that notice to defendants existed from the circumstances shown of record, although the Chancellor referred to this notice as “constructive notice” instead of “implied actual notice.” The term employed to denote it is not vital to the correctness of the Chancellor’s decision. It is the fact of notice and not the name given to it which1 is binding on the appellants. Law writers and judges frequently refer to any kind of imputed notice which is charged to another by reason of circumstances binding on him, whether actually known to him or not, as “constructive notice.” In a broad sense the term “constructive notice” is frequently used in a loose way to describe what is in strictissimis vertís merely “implied actual notice. ’ ’
In our previous opinion we pointed out the difference which exists as a matter of law between constructive notice and implied actual notice. We did not hold that the County Judge’s records were constructive notice. That point was particularly pointed out and the distinction drawn between constructive notice and implied actual notice as applied to' the facts of this case, but implied actual notice is as much actual notice in law as expressed notice would be. Therefore, if actual notice of the unrecorded mortgage would have prevented the defendants from being *269bona fide purchasers without notice, then such actual notice may be implied as well as express.*
One of the grounds for rehearing is that “if the infant, Annie Lester Patterson Warner, must be protected due to' infancy, that the same reasoning does not apply to the adult, Jessie B. Markley.” The answer to this contention is that the Court has not held that Annie Lester Patterson Warner should be protected on account of infancy, but on the ground that there was implied actual notice of the unrecorded mortgage securing payment of the purchase price of her interest by reason of the fact that an examination of the county judge’s records comprising the chain of title would have disclosed both the mortgage interest of the minor and the mortgage interest of the adult.
Actual notice of both the mortgage interest o'f the minor and the mortgage interest of the adult is permissibly implied from the fact that the chain of title discloses a guardian’s deed under which the defendants necessarily have to claim part of their title at least. The law presumes that as reasonably prudent purchasers of property they examined the proceedings which were had, and which were necessary to support the validity of, the guardian’s deed conveying the interest of the minor in the property.
It would have been absolutely impossible under the facts of this case for the records to have been examined by anyone without his learning of the mortgage which was required to be taken by the guardian to secure the unpaid purchase price for the land, covering the adult’s as well as the minor’s interest in such purchase price. The guardian’s report affirmatively showed that the property was intended to' be sold and was sold in solida. The plan of sale was plainly shown to be that the entire title should pass by a *270deed from the guardian and the adult, and that the interest of both when conveyed should be encumbered by a first lien purchase-money mortgage back to them securing the payment of the unpaid purchase price.
The Chancellor passed on the question of actual notice as a question of fact. He was warranted in finding that implied actual notice of the unrecorded mortgage existed as a matter of fact from the circumstance that an examination of the guardianship proceedings must necessarily have disclosed the existence of the unrecorded mortgage sought to be foreclosed.
The case is a hard case, it is true. Someone must lose. The Chancellor held in effect that if anyone was negligent it was the defendants who failed to' examine the guardianship proceedings, though the mortgagees were likewise negligent in not recording the purchase-money mortgage which they took to secure the unpaid purchase price. No circumstance was shown undertaking to excuse the defendants from their failure to examine the guardianship proceedings. Had the guardianship records been lost or destroyed, oh other circumstances of that kind been made to appear, the Chancellor might have been precluded from finding as a fact that there was implied actual notice of what the guardianship proceedings showed. But in the absence of such proof, the Chancellor was entitled to indulge the presumption that the guardianship records being in existence, and open fob inspection, were actually examined, and being so examined that knowledge of the facts they disclosed was ascertained by the defendants, and that therefore the defendants took their title with knowledge of the unrecorded purchase money mortgage outstanding against it in favor of the appellees.
It follows from what has been said that the Chancellor properly entered a decree o'f foreclosure in favor of the appellees, and that our previous decision affirming such *271decree should he re-adopted and adhered to on this rehearing.
It is therefore ordered that the decree appealed from be re-affirmed on rehearing.
Buford, C.J. and Whitfield, J., concur.
Ellis, J., agrees to denial of rehearing.
Brown, J., dissents.
Terrell, J., not participating.
On Motion to Recall Mandate of the Supreme Court for the Purpose of Directing the Lower Court to Vacate and Set Aside Final Decree for the Purpose of Amending the Pleadings in the Lower Court.
Opinion filed December 2, 1932.
Per Curiam.An appeal in equity is but a step in the cause. Palm Beach Estates v. Croker, (decided by this Court on Aug. 31, 1932) 143 Sou. Rep. 792. Where a final decree of foreclosure is appealed from, and is on the appeal affirmed, the affirmation is conclusive as to the right of the complainant in foreclosure to have his lien enforced by foreclosure sale for the amount of the decree as affirmed by the appellate court, and the foreclosure operates to enforce the mortgage as against all defenses that were asserted, or that might have been asserted by the defendants by appropriate pleadings prior to the entry of the final decree adjudicating the foreclosure.
But a court of equity at all times retains jurisdiction to do equity in the enforcement of a foreclosure decree rendered by it, until after a sale under it is made and confirmed. And for the purpose of doing equity between the parties as to the enforcement of the decree, such court of equity, even after final decree of foreclosure, may still entertain such further appropriate proceedings as may directly relate to the character and extent of enforcement of the decree by sale. And this is true, even after affirmation *272of the final decree of foreclosure by an appellate court, See authority hereinafter cited.
This permissible procedure includes the right of the Court below, after mandate affirming a foreclosure decree is lodged with it, to entertain on the basis of special and peculiar equities asserted, appropriate supplementary proceedings filed by the defendants in the cause, having for their object the securing of an equitable right to redeem their lands from- the decree itself prior to actual sale, in order to allow the defendants to have the benefit of a covenant for partial releases imposing a duty to permit partial redemption that is in equity and go'od conscience still binding on'the mortgagee, unless that question was expressly or impliedly adversely decided in the final decree itself, so that such equitable claim may be said to have become concluded by the affirmance of the final decree.
Our affirmance of the final decree of foreclosure in this case (See foregoing opinion rendered April 19, 1932, 141 Sou. Rep. 124, and opinion rendered September 28, 1932, 143 Sou. Rep. 648), was not intended by this Court to foreclose or cut off any special or peculiar equities the appellants might have obtained by reason of such affirmance, to redeem their individual properties according to' special covenants which may still be binding on the mortgagee in a court of conscience. So without at this time undertaking to adjudicate or decide whether or not any such binding covenants yet exist, or whether or not appellants have waived them if they did exist, we simply construe our own judgment of affirmance and mandate thereon, as not having been intended by this Court to cut off the consideration by the Court below of special and peculiar equities which appellants may have become entitled to assert for the protection o'f their own individual right to redeem from the foreclosure decree, their individual properties subject thereto, under the same circumstances that *273such individual properties could have been released from the mortgage itself before the final decree was entered.
The recall of the mandate is not necessary because the court below is not prohibited by the existing opinion and mandate fro'm considering and deciding, on equitable principles, whether or not the appellants should be now permitted to redeem their individual properties from the foreclosure decree, by reason of the special and peculiar equities which may exist, that would render the execution of that decree by foreclosure sale as originally ordered, unjust and inequitable.
This is a different proposition fro'm authorizing the reopening of the final decree itself in order to permit a covenant for partial releases, to be pleaded as a matter of right, by way of defense.
The proposition we decide now is simply that a court of equity, having jurisdiction at all times over the enforcement o'f its own decrees, until they have been actually executed, may stay or modify, or may direct the enforcement of its decrees in a particular way, when necessary to prevent a miscarriage of justice, or may alter the method of enforcement in order to accord with special and peculiar equities which have arisen.
Such special and extraordinary powers of the court, being vested in it solely for the purpose of preventing inequitable consequences from following the enforcement of an admittedly proper decree, cannot be invoked as a matter of right, but must depend upon the demonstration of some special and peculiar equity which when established or admitted, would give rise to a right to' have the enforcement of a decree altered, upon such terms and conditions as the court may determine should be complied with by the petitioner, in order to do equity on his part, so as to prevent a miscarriage of justice on either side by the requirement *274of an inequitable thing, merely because it had originally been decreed that way.
A court of chancery in granting relief of the kind just mentioned, does not act as a court of errors to examine or reverse its previous decree, but it treats all the previous proceedings as valid, and acting on special and peculiar equities made to appear, grants relief to the petitioner against the consequences of enforcing the decree itself as rendered, when under the circumstances shown, the rights acquired by the opposite party under that decree, cannot be retained by him in good conscience, exactly as granted. For the theory upon which the exercise of such powers by equity court rests, see Bank of Kentucky v. Hancock, 6 Dana (Ky.) 284, 32 Am. Dec. 76.
We conclude that the recall of the mandate, as applied for by the motion now before the Court, is not necessary to' enable the movants to present and have considered an appropriate petition seeking to obtain the benefit of equities which may have arisen in their behalf by virtue of the decree of this Court affirming the enforceability of the mortgage that was lost when the pleadings were made up. And without expressing any opinion whatsoever on the merits' of movants’ claim as referred to in the proceedings now before the Court, we construe our o'wn opinion, and our own judgment and mandate, as having been intended not to operate to the prejudice of appellants’ right to have a claim such as they seek to have adjudicated, considered on its merits, according to equitable principles which may justly control its final disposition.
While there was no fraud committed by the appellees, either actually or constructively, in obtaining an affirmance of the final decree appealed from, yet the pleadings on appellees’ part shown in the transcript did not truly represent the real mortgage which was actually foreclosed. The real mortgage was lost when the original bill for fore*275closure was filed. Nevertheless, the relief was granted on a bill brought to foreclose the original mortgage on the basis of certain evidentiary mortgages pleaded, which, as developed later, when the original mortgage was found, did not correspond in all respects with the original mortgage as to certain special covenants. "We think this peculiar circumstance brings the present situation within the spirit and intent of the rule followed in Bank of Kentucky v. Hancock, supra, which was to the effect that relief might be granted even as against rights asserted under an appellate court’s mandate, when equitable consideration require it.
Motion to recall mandate denied, without prejudice to consideration of appropriate proceedings in court below.
Whitfield, P.J., and Terrell and Davis, J.J., concur.
Brown, J., concurs in the opinion and judgment.
Piled under Rule 21A.
Both were married when the suit was brought and their husbands wore joined therein as parties complainant, the guardian for the minor having in the meantime made his accounting and been discharged.
The holding in Rambo vs. Dickenson, 92 Fla. 758, 110 Sou. Rep. 352, is in entire harmony with this view if implied actual notice is the legal equivalent of express actual notice, as we hold that it is.