"In the absence of a statute, or rule of court made in compliance with law, no decree in chancery for a deficiency, after a sale of the mortgaged property could be entered in a court of equity, unless it be that the debt, without the mortgage, is such that a court of chancery would have jurisdiction of it, and could render a decree for it." Webber v. Blanc, 39 Fla. 224, 22 So. 655.
"Denial of a deficiency decree in a mortgage foreclosure does not affect the obligation involved, but pertains only to the remedy for its enforcement." Taylor v. Prine, 101 Fla. 967,132 So. 464.
Section 5751 C.G.L., as amended by Chapter 13625, Acts of 1929, like Equity Rule 89, authorizes a deficiency decree in a mortgage foreclosure only against those who sign the mortgage. Van Sant v. Duval Cattle Co., 116 Fla. 159, 156 So. 369.
An adjudication in a foreclosure suit that parties thereto, other than those who signed the mortgage, are joint obligors or adventurers with the signer, and liable for the mortgage debt, is for the purpose of the mortgage foreclosure as to the mortgaged property, and not to render personal deficiency decrees in equity against those who did not sign the mortgage or assume its covenants, the remedy against the latter being at law on the implied liability. See Proctor v. Hearne, 100 Fla. 1180,131 So. 173; Drew v. Hobbs, 104 Fla. 427, 140 So. 211. *Page 464
The foreclosure decree found the complainant "entitled to the relief * * * prayed against the defendants, R.J. Taylor and John Pasco, as joint adventurers." This fixed the legal liability of the two defendants for the mortgage debt for the purpose of foreclosing the mortgage on the property. Taylor, signing the mortgage as "R.J. Taylor, Trustee," is expressly liable on the covenants of the mortgage. Pasco did not sign or expressly assume the mortgage covenants. His liability for the mortgage debt is implied by the relation to the joint adventure and may be enforced at law, no right to a deficiency decree in the foreclosure suit being shown.
The deficiency decree is against "R.J. Taylor and John Pasco as joint adventurers doing business under the name of R.J. Taylor, Trustee." The notes and the mortgage were signed by "R.J. Taylor, Trustee," and not by John Pasco. See Sec. 6778 (4692) C.G.L. While both may be liable as joint obligors or adventurers for the mortgage debt, a deficiency decree in a mortgage foreclosure suit may be rendered only against the joint obligor or adventurer who signed the notes and the mortgage and thereby expressly signed and assumed the mortgage covenants; the remedy against the other joint adventurer who did not sign or expressly assume the mortgage covenants, is at law on the implied liability to pay the mortgage debt growing out of the joint adventure and obligation, no right to a deficiency decree in equity being shown as to Pasco.
In Van. Sant v. Duval Cattle Co., 116 Fla. 159, 156 So. 369, all the parties signed the bond for the debt, but only the Duval Cattle Company signed the mortgage. The bond signed by all the parties expressly referred to the mortgage given to secure the debt, but the mortgage covenants were not assumed by any of the parties except the signer of the mortgage, the Duval Cattle Company. A deficiency decree *Page 465 against those who did not sign the mortgage was decreed without prejudice to appropriate procedure.
One partner has no implied authority to bind the firm by an instrument under seal; though where such an instrument is executed by one partner in the firm name, within the scope of partnership business, it may be ratified by the other partner. Fischler v. Kurtz Bros., 35 Fla. 323, 17 So. 661.
BROWN and DAVIS, J.J., concur.
UPON THIRD PETITION FOR REHEARING.