John W. Pearson, Appellant v. E. T. Helvenston and Sarah Harman, Appellees, 50 Fla. 590

Whitfield, J. John R. Martin filed a hill in the Circuit Court for Marion county against Henry E. Schoeflin and E. T. Helvenston to foreclose a mortgage on certain real estate to secure the payment of a promissory note alleged to have been executed by said Henry E. Schoefln to John W. Pearson, which note and mortgage are alleged to have been assigned by Pearson to one John Y. Bettys and by Bettys assigned to said John R. Martin. The bill alleges that in June, 1900, subsequent to the execution and record of the mortgage Henry E. Schoeflin executed a deed of conveyance of the same land to E. T.

Helvenston, and that the claim of Helvenston is inferior to the mortgage sought to be foreclosed. Helvenston answered denying that his claim and title to the land is subject to the mortgage lien, and averring that his claim of title to and possession \of the land is based upon tax deeds specifically referred to in the answer under which he entered upon actual adverse possession of the land in May, 1900.

He further admits that he procured the deed of conveyance from Schoeflin and wife, but denies that he claims the title to and possession of the land under and by virtue of said deed of conveyance from Schoeflin and wife, and avers that he procured the same for the purpose of divesting said Schoeflin and wife of all interest that they might have, or thereafter claim, in said property, and avers that he was in actual adverse possession of the property long before Schoeflin and wife executed the deed to him. A replication was filed and testimony was taken by an examiner.

A decree of foreclosure was entered in which it is decreed “that in the event said property is sold that the said defendants Henry E. Schoeflin and E. T. Helvenston and all persons claiming by, under or through them since the recording of the said mortgage be and they are forever barred and foreclosed of all rights and equity of redemption in and to said property or any part thereof.” The property was sold pursuant to the foreclosure decree and was bid in at the sale by the complainant J. R. Martin who transferred his bid to John W. Pearson. An application by John W.

Pearson for a confirmation of the sale and for a writ of assistance against E. T. Helvenston was denied on April 11th, 1905, but on May 20th, 1905, the sale was confirmed and the special master was ordered to make a deed of conveyance of the land to John W. Pearson the assignee of the purchaser at the sale. On May 27th, 1905, John W. Pearson presented to the court a petition for a writ of assistance upon which the following order was made: “The petition of John W.

Pearson, who purchased the mortgaged premises sold under decree in above styled cause, praying a writ of assistance to be put into possession of the said property coming on to be heard this day, and it appearing that notice of the application was given to Edwin Helvenston and one Sarah Harman, alleged to be the tenant of said Helvenston, and the court being advised in the premises, whereupon it is ordered and decreed, that said petition be and the same is hereby denied and dismissed. The record showing that E. T.

Helvenston entered possession of the mortgaged premises and continued in such possession under and by virtue of an original source of title independent of the complainant’s and not claiming under him such original title, said original title being tax deed from the State of Florida, and there being no adjudication of this title, the writ of assistance is refused. Done at Chambers ¡a Ocala, Florida, May 27, 1905. W. S. Bullock, Judge.” From this order denying a writ of assistance and from the order of April 11th, 1905, denying an application for a confirmation of the sale John W.

Pearson took an appeal to this court, and assigns as errors the making of the said two orders. The refusal of an application for confirmation of a sale of real estate made pursuant to a foreclosure decree cannot be the basis for an assignment of error where it appears that shortly after such refusal the court made an order of confirmation, not appealed from, and no injury to appellant is shown. A tax title claimed to be adverse and paramount to the rights of both mortgagor and mortgagee is not a proper subject of adjudication in a suit to foreclose the mortgage. See Brown v. Atlanta Nat.

Bldg. & Loan Ass’n., 46 Fla. 492, 35 South. Rep. 403. Where the language of a decree is open to more than one

interpretation it should be interpreted so as to make it correct and proper with reference to the pleadings and proceedings in the case. See Clay v. Hildebrand, 34 Kansas 694, 9 Pac. Rep. 466; 5 Ency. Pl. & Pr., 1060. The language of the foreclosure decree of February 23rd, 1905, “that in the event said property is sold that the said defendants Henry E. Schoeflin and E. T.

Helvenston and all persons claiming by, under or through them since the recording of the said mortgage be and they are forever barred and foreclosed of all rights and equity of redemption in and to said property or any part thereof” is not necessarily an adjudication of the title derived through the tax deed as E. T.

Helvenston claimed in his answer, which title if valid extinguished all other titles; but the quoted language of the decree is subject to the construction put upon it by tbe Chancellor on May 27th, 1905, as shown by his order refusing the writ of assistance, i. e. that he did not pass upon the title claimed under the tax deed, but only upon the “rights and equity of redemption” under the mortgage. This construction renders the decree proper under the pleadings and proceedings in the case, therefore it cannot be said that the court erred in refusing the writ of assistance as prayed for.

If the title asserted by Helvenston under the tax deeds is not a good title as against the purchaser at the foreclosure sale he has his remedy in appropriate original proceedings. The orders appeal from are affirmed. Shackleford, C. J., and Cockrell, J., concur. Taylor, P. J., and Hocker and Parkhill, JJ., concur in the opinion.