Lambert properly requested partition incident to his request to modify. See Horn, supra. Because he met the pleading requirements of § 64.041 governing partition, see Cyphers v. Cyphers, 373 So.2d 442 (Fla.2d DCA 1979), and because he had a right to immediate possession through modification of the original dissolution decree, he now has a right to partition as a tenant in common. Condrey v. Condrey, 92 So.2d 423 (Fla. 1957). Because we held in the companion case, Lambert v. Dracos, 403 So.2d 481, that the foreclosure proceeding on the second mortgage was invalid, Lambert's one-half interest in the marital home remains, and he thus demonstrates the requisite standing to request partition.
The lower court may wish to consider as a proper exercise of its discretion whether Lambert's right to partition the former marital home would not be best achieved by consolidating the mortgage foreclosure and partition actions into one proceeding. It has long been observed that equity rejoices in doing complete justice, and not by halves. Skillman v. Baker, 142 So.2d 113 (Fla. 1st DCA 1962). Moreover, equity can intervene to protect a multiplicity of suits. See Realty Bond and Share Co. v. Englar, 104 Fla. 329, 143 So. 152 (1932); Connell v. Mittendorf, 147 So.2d 169 (Fla. 2d DCA 1962). And, finally, equity may stay its own proceedings and consolidate causes for trial. See Terra Ceia Estates v. Taylor, 68 Fla. 261, 67 So. 169 (1914).
The equitable remedies of partition and foreclosure are compatible in the instant case. A mortgagee is a proper party defendant in a partition suit, Miles v. Miles, 117 Fla. 884, 158 So. 520 (1935), and a defendant to a partition suit may be allowed, as part of the partition proceedings, to foreclose a mortgage on part of the land sought to be partitioned. See Burney v. Dedge, 56 So.2d 715 (Fla. 1952). Therefore, now that the foreclosure decree has been vacated, should Dracos elect to file a subsequent foreclosure action against appellant, the trial court may wish to decide whether it should be done incidental to any partition suit which appellant may wish to prosecute. Thus, the trial court, if it desired, could adjudicate the several rights of the parties in a consolidated proceeding and thus avoid a multiplicity of suits. Miles v. Miles, supra.
A further question remains as to whether Lambert is entitled under Chapter 64, Florida Statutes, to a partition in kind or an outright sale of the property. Lambert alternatively prayed for both remedies in his petition. However, he did not plead an uncontested allegation that the marital home was indivisible pursuant to Section 64.061(4). Therefore, on remand, the trial court should permit Lambert to amend his petition by alleging, if he can, that the home is nondivisible. Moreover, it may be necessary for the court to appoint three persons as commissioners to make a report concerning whether partition can be made without prejudice to the owners. See Section 64.061 and 64.071(1), Florida Statutes. The latter section provides:
If the commissioners report that the lands of which partition is directed are so situated that partition cannot be made without prejudice to the owners and if the court is satisfied that such report is correct, the court may order the land to be sold at public auction to the highest bidder by the commissioners or the clerk and the money arising from such sale paid into court to be divided among the parties in proportion to their interest.
488*488 If a partition sale is ordered below, all of the rights of the parties could be adjudicated in one proceeding, and the sales involved in the two actions could be "divided among the parties in proportion to their interest." Section 64.071. It has been observed that a judicial sale which is conducted to carry out the provisions of a suit for partition is governed by the same general provisions as a suit for foreclosure. See Grable v. Nunez, 66 So.2d 675 (Fla. 1953); 12 Fla.Jur.2d, Cotenancy and Partition, § 105 (1979). Thus, should the court decide to consolidate the two actions, the traditional equitable rules as to priority of liens and equality of distribution should be followed in the partition proceeding. Some adjustment should be made in favor of the appellee and Dracos for the improvements to the property to the extent that it adds to the value of the property. See 12 Fla.Jur.2d, Cotenancy and Partition, § 67.
We do not intend by this opinion to foreclose the possible remedy that the parties may voluntarily agree to cooperate and jointly sell the property without the aid of the court to maximize the sale price. See In re: Marriage of Jones, 357 So.2d 439 (Fla. 2d DCA 1978). Or, the parties may wish to arrive at their own settlement, which may prove to be the most equitable to all parties concerned. Cf. Sherlock v. Sherlock, 396 So.2d 196 (Fla. 1st DCA 1981).
