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(225 Mass. 320)

whole or any part of said real estate." The JUSTICE v. SODERLUND et al. legacies amounted to $19,500. “The mort(Supreme Judicial Court of Massachusetts. gages referred to in the will were somewhere Middlesex, Dec. 6, 1916.)

about $5,500 or $6,000." Her personal es1. EXECUTORS AND ADMINISTRATORS @mo138(3) tate was inventoried at $8,193.47. The debts, -SALE OF REALTY-PROBATE LICENSE. including funeral expenses and taxes, were

The will giving the executors power to sell approximately $5,143. the real estate for payment of mortgage, no license from the probate court is necessary for in Newton, and the executors acting under

The testatrix owned a large tract of land sale for such purposes.

(Ed. Note. For other cases, see Executors the powers in the will, without obtaining a and Administrators, Cent. Dig. 88 563, 564; license to sell from the probate court, sold Dec. Dig. 138(3).]

at public auction, in October, 1912, some of 2. EXECUTORS AND ADMINISTRATORS 143—the lots into which the tract was divided. SALE OF REALTY-RECORD.

The total amount of these sales was $18,176.For validity of an executor's sale under power in the will to pay the mortgages and legacies, 60. “But four parcels were not taken, it was not necessary that all the facts appear of leaving a little over $10,000 actual money rerecord.

ceived from the auction sale, which was not [Ed. Note.-For other cases, see Executors enough to pay the mortgages and legacies." and Administrators, Cent. Dig. 88 557, 578;

At this sale of October, 1912, the plaintiff Dec. Dig. 143.]

purchased lot No. 18 for $250.25, paying $100 3. EXECUTORS AND ADMINISTRATORS 145

at the time of sale. A quitclaim deed, unSALE OF REALTY-DEED.

Executor's deed of land sold under testa- signed, was prepared and sent to the attormentary power, though made prior to St. 1912, ney for the plaintiff, describing the land sold c. 502, and using the words "remise, release and as lot No. 27. The form of the deed was obforever quitclaim," without the word “grant," jected to on the ground that the executors was sufficient.

had no title under the will and could not (Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 585-587; convey by quitclaim deed, and that a license Dec. Dig. 145.]

from the probate court was necessary to 4. SPECIFIC PERFORMANCE 101 SALE OF make such a sale; but no objection was made LAND-OBJECTION TO DEED.

to the deed because of the error in describing The purchaser of land from executors having the number of the lot. Further correspondplaced his objection to their deed on other grounds cannot in his suit for specific perform-ence passed between one of the executors ance complain of any mistake in the deed as to and the representative of the plaintiff. The the number of the lot, which would have been last letter was November 2, 1912, when the corrected immediately, had objection been based plaintiff was informed the executors had thereon.

[Ed. Note. For other cases, see Specific Per- ready for delivery a deed of lot 27. formance, Cent. Dig. 88 290, 295, 311-317;

The plaintiff entered upon the premises, culDec. Dig. Om101.)

tivating the land and setting out shrubs and 5. SPECIFIC PERFORMANCE O 105(3)--LACHES. trees thereon, the executors paying the taxes.

Purchaser of land at executor's sale, having The plaintiff made no further effort to secure a made no effort for three years to get a deed, and deed of the premises. In the latter part of no offer to pay the remainder of the purchase price, was guilty of laches, barring right to 1915, the executors sold lot 18 to the defendant specific performance, after the executors had sold Soderlund. In November, 1915, the plaintiff to others, notwithstanding his occupation of the brought this bill for the specific performance premises, unknown to the executors.

of the contract of October, 1912, praying that [Ed. Note. For other cases, see Specific Per- the executor be directed to execute and deformance, Cent. Dig. 88 327–341; Dec. Dig. Om liver to him a good and sufficient deed of 105(3).]

the lot purchased. In the superior court Appeal from Superior Court, Middlesex

the bill was dismissed. County ; John D. McLaughlin, Judge.

By the will of the testatrix the executors Action by Charles H. Justice against N. J. were given the power to sell her real estate Soderlund and others. From an adverse for the payment of the mortgage and legacies. decree, plaintiff appeals. Affirmed.

The evidence shows the sale to have been Ralph S. Bartlett, of Boston, for appel- proper, for this purpose, and no license froin lant. Arthur W. Blakemore and Herbert A, the probate court was necessary. It was said Horgan, both of Boston, for appellees. by Chief Justice Shaw in Going v. Emery,

16 Pick. 107, 113, 26 Am. Dec. 645: CARROLL, J. [1] Maria M. Gay, who “Whenever an executor has the power under died June 5, 1911, in the sixteenth clause will to sell real estate, no license of any court

is necessary to, or can give an additional validity of her will directed her executors to

to any sale and conveyance which he may make. "sell such portion of my estate as may And it is considered a good reason for refusing be necessary to pay off the mortgage such license, that the power already exists." now thereon, and then to sell such por See McLaughlin v. Greene, 198 Mass. 153, tion as may be necessary to pay the legacies 83 N. E. 1112, and cases cited. herein made," and for this purpose they were Allen v. Dean, 148 Mass. 594, 20 N. E. 314, authorized “to sell at their discretion the relied on by the plaintiff, is not in conflict

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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with this. In that case authority was given 168, 22 N. E. 885; Ladd v. Chase, 155 Mass.
to sell the real estate "as the proper and con- 417, 422, 29 N. E. 637.
venient settlement of the estate may re [4] The deed which was offered referred
quire.” The settlement of the estate meant to the premises as “lot 27 as shown on a plan
the settlement of the probate accounts, the *

recorded with Middlesex South Dis. payment of debts, legacies, and the charges trict Deeds,” followed by a detailed descripof administration; and it was held that tion; while the same lot on the plan used at there was nothing in the will showing the the trial is lot No. 18. The plaintiff did not testator used the words in any other sense, object to the deed on the ground of any al. and no power was given to sell the real es- leged mistake in the number of the lot. He tate for the purpose of making partition based his objections on other grounds. As among the devisees. In Litchfield v. Cud- the judge found, "The parties seemed to worth, 15 Pick. 23, the administrator was agree at the hearing that the error would licensed to sell to the amount of $640. He have been immediately rectified if the deed sold the whole estate for $953.33, and be had been satisfactory in other respects," cause he exceeded his authority, the sale and the plaintiff expressly "withdrew any was void. In Bremer v. Hadley, 196 Mass. charge of fraud in numbering the lots.” The 217, 81 N. E. 961, no power was given to sell plaintiff cannot now be heard to complain any part of the trust property or to reinvest that there was a mistake in the number of the fund.

the lot in the deed, if, indeed, on the whole [2] The mortgage and legacies aggregated record there was any mistake. $25,000, and while the property inventoried [5] The plaintiff was guilty of laches and at $30,000 was put up for sale, only $10,000 the judge was clearly right in so finding. worth was sold. It was not required that Three years lapsed after the purchase before these facts should all appear of record, nor the plaintiff made any effort to secure a deed. did the executors, in proceeding as they did, He made no offer to pay the remainder of exceed the authority conferred upon them. the purchase price and he did not proceed McLaughlin v. Greene, supra.

within a reasonable time to protect his rights. [3] In the deed the executors used the See Mansfield v. Wilde, 221 Mass. 75, 83, 108 words, "remise, release and forever quit. N. E. 901. His occupation of the premises, claim.” They did not use the word "grant.” as shown by the evidence, without the knowlAlthough the instrument was made prior to edge of the executors, was no excuse for St. 1912, c. 502, it was suficient in form. It this delay. was unnecessary to employ this particular Decree of the superior court afirmed with word. Wainwright v. Sawyer, 150 Mass costs.

et al

(187 Ind. 37)

until long after they had appeared and filed McCLEERY et al. v. ZINTSMASTER et al* their remonstrances was not error. (No. 22404.)

(Ed. Note.-For other cases, see Drains, Cent.

Dig. 8$ 25-28; Dec. Dig. Om 30.] (Supreme Court of Indiana. Dec. 21, 1916.) 7. DRAINS 33 PROCEEDINGS REMON


Remonstrances filed more than ten days TION-STATUTE. Where the circuit court of a county right them came too late and were properly rejected.

after notice had been served on those filing fully acquired jurisdiction of a petition for the establishment of a drain wholly within the

[Ed. Note.-For other cases, see Drains, Cent. county, the action of the commissioners ap- | Dig. $$ 34, 35, 53, 80; Dec. Dig. Om33.) pointed in including in their report a small arm 8. APPEAL AND ERROR @294(2)--PRESERVING extending into another county would not oust GROUNDS OF REVIEW MOTION FOR NEW the jurisdiction of the court as to the drain TRIAL. mentioned in the petition, and would not be The question of the sufficiency of the evigrounds for dismissing the whole proceedings. dence to support findings that the costs, dam

(Ed. Note.-For other cases, see. Drains, Cent. ages, and expenses would not exceed the benDig. $ 18; Dec. Dig. 26.)

efits could not be preserved for review by an

exception to the conclusion of law that the pro. 2. DRAINS 26-ESTABLISHMENT-POWER OF posed drain should be established, as excepCOMMISSIONERS-STATUTE.

tions to the conclusions of law admit the facts In view of Drainage Act (Burns' Ann. St. to be well found, but the question should have 1914, $.6140 et seq.), providing that drainage been presented by a motion for new trial on commissioners shall locate the drain and fix the that ground. beginning or outlet so as to secure the best re [Ed. Note.--For other cases, see Appeal and sults, the provisions of section 6141, requiring Error, Cent. Dig. $$ 1724, 1725, 1728-1735; the court to appoint one commissioner from Dec. Dig. 294(2).) every county, applies only when the petition is

- FINDINGS BY COURT for å drain extending into another county, and, 9. TRIAL 400(2)

DEFECTS-REMEDY. on petition for a drain lying wholly within one county, commissioners appointed from that

Where any or all facts are not sustained county may extend the beginning of the drain by the evidence, or are contrary to law, the a short distance into another county without proper remedy is by motion for new trial, and ousting the jurisdiction of the court or making a motion to modify and correct the court's spetheir report contrary to law.

cial findings is not a recognized practice and [Ed. Note.-For other cases, see Drains, Cent.

was properly overruled. Dig. § 18; Dec. Dig. Om 26.)

[Ed. Note. For other cases; see Trial, Cent.

Dig. $ 950; Dec. Dig. Om 400(2).] 3. DRAINS 233–PROCEEDINGS-MOTION TO


REPORT OF COMMISSIONERS. Where a petition was in conformity with

The report of the commissioners was comthe statute for a drain lying wholly in one county, and the commissioners' report provided petent evidence in proceeding to establish for a drain with an arm extending into an. other county, a motion to reject the petition and Dig. 36-39, 43; Dec. Dig. em 34.

[Ed. Note.-For other cases, see Drains, Cent. report on this ground was too broad, and was properly overruled.

11. DRAINS Omw 34-PROCEEDINGS-EVIDENCE(Ed. Note.-For other cases, see Drains, Cent. ADMISSIBILITY. Dig. $$ 34, 35, 53, 80; Dec. Dig. 33.)

The admission of agreements made between 4. DRAINS 33-PBOCEEDINGS-COMMISSION- who were contesting their individual assess

the petitioners and two groups of landowners ERS' REPORT-MOTION TO STRIKE.

ments, reducing the assessments to sums fixed, Where the petition was for a drain lying which it was agreed represented benefits in full wholly within one county, and the commis- to the land, was not error. sioners' report provided for a drain with an

(Ed. Note.-For other cases, see Drains, Cent. arm extending into another county, the court Dig. 88 36–39, 43; Dec. Dig. 34.] could not strike on motion everything in it relating to that part wbich extended into anoth- 12. DRAINS em 69 — PROCEEDINGS – ASSESSer county, since the drain and arm were reported as a whole, and the assessment was ap Objectors were not entitled to credit for portioned as one system.

prior drainage assessments for other drains, (Ed. Note.-For other cases, see Drains, Cent. the question being to what extent their land is Dig. 88 34, 35, 53, 80; Dec. Dig. 33.) benefited, even under Burns' Ann. St. 1901, $

5657, the provision of which was not included 5. DRAINS 33-PROCEEDINGS—COMMISSION- in the present law. ERS' REPORT-MOTION TO STRIKE.

[Ed. Note.-For other cases, see Drains, Cent. Where a petition was for a drain lying Dig. 75; Dec. Dig, m69.) wholly within one county, and the commissioners reported a drain with an arm extending Appeal from Circuit Court, Huntington into another county, an objection that the re- County; Robert Van Atta, Special Judge. port of the commissioners was not according to law is the proper proceeding, and not a

Proceeding by D. W. Zintsmaster and motion to strike out everything in the report others to establish a public drain, opposed relating to that part of the drain which ex- by John P. McCleery and others. From a tended into another county.

judgment establishing the drain and over[Ed Note. For other cases, see Drains; Cent ruling their motions for a new trial, objec- , Dig. $8 34, 35, 53, 80; Dec. Dig. 33.)


S. M. Sayler, of Huntington, and T. E. Where notice to objectors was sufficient Ellison, Ballou, Hoffman & Romberg, and J. to bring the parties into court, the action of the M. Haley, all of Ft. Wayne, for appellants. court in overruling a motion to strike out the proof and return of service of notice not filed D. F. Brooks, of Wabash, and C. W. Wat

faw For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
114 N.E.-40

*Rehearing denied.



kins and Charles A. Butler, both of Hunting-| the gross sum of $321,655, which the comton, for appellees.

missioners in their report apportioned by

assessments on about 300,000 acres of land COX, J. This was a proceeding institut- lying in Huntington, Allen, Whitley, and ed by appellees in the circuit court of Hunt

Wells counties. To give time to serve the ington county under the provisions of the owners of lands brought in reported benefitdrainage act of 1907 (Acts 1907, p. 508; sec-ed and assessed by the report of the commistion 6140 et seq., Burns 1914) to establish sioners the hearing was ultimately set for an extensive public drain. From a judgment March 30, 1912. Prior to this date numerestablishing the drain, this appeal, in which ous remonstrances were filed by landowners numerous errors are assigned, is brought.

brought in by the report but who do not apThe petition of appellees was in the usual peal from the final order establishing and form of a petition for a drain wholly in one ordering the construction of the drain. In county, and it averred, in substance, that addition to this many motions and remonthe petitioners were the owners of about strances were filed by appellants before the 1,100 acres of land in Huntington county,

trial. All of these motions were overruled which was described; that this land was in and the remonstrances of all appellants exneed of drainage, which could not be accept the McCleerys, Huffmans and McClelcomplished without affecting the lands of lan Branstrattor were stricken out. The others; that these latter lands comprised cause was tried on issues presented by the more than 1,500 acres, which were described remonstrances of those last named and of and their ownership stated. It was averred other parties who do not appeal. By request that the best and cheapest method for the the court found the facts specially and proper drainage of the lands in question stated conclusions of law thereon.

All apwould be by an open drain beginning in the pellants filed motions for a new trial, which Little Wabash river, commonly known

were overruled. In this court a voluminous Little river, on the line dividing Huntington record of 1,800 pages is presented which is and Allen counties, and running in a south- inextricably confused. On this record 17 westerly direction from the point of begin- assignments of error are made by appellants ning, following generally the course of the severally and collectively, and these assignriver to a named point therein where it ments of error contain variously from 4 to should terminate. It was averred that the 11 specifications of error each. These as contemplated drain would benefit the public signments of error are not specifically stated health; that it would benefit certain public or followed in that part of appellant's brief highways in Allen and Huntington counties; which states the errors relied on for reverthat when completed the proposed drain sal. We shall follow the latter statement in would be of public utility; and that the dam- so far as we can discover the questions ages occasioned thereby and the costs there which appellants are seeking to have deterof would be less than the benefits which mined. would result therefrom to the owners of lands

At the outset of their argument it is conaffected thereby. Upon proof of notice of the ceded by appellants that the drain bere infiling of the petition given to the owners of volved is much needed and should be conthose lands named therein as affected, the structed. Its purpose is to provide a sufpetition was on March 25, 1910, docketed as ficient outlet for a very extensive basin. In a cause. On April 20th following, there hav- the upper part of the basin large drains have ing been no remonstrance, objection, or de- been constructed which conduct the surface murrer to the petition, the matter was re

waters in great volumes onto the lower end ferred to Benjamin Heaston, drainage com- where the outlet is not sufficient to carry it missioner of the county, James B. Vernon, a

on. This is greatly to the detriment of the surveyor resident in the county, and William landowners in the lower end of the basin, F. Fulton, a disinterested resident freeholder the petitioners, and in a lesser degree to all of the county, and September 5, 1910, was

affected. fixed as the date on which they were to re

[1] It is first asserted generally that the port. The time for filing a report was ex. Huntington circuit court had no jurisdiction tended from time to time until February to establish and order the construction of 26, 1912, on which date it was filed.

the drain reported, for the reason that a The report was favorable to the construc- small part of it extended beyond the boundtion of a principal drain all in Huntington ary of Huntington county into Allen county. county substantially the same as the one de There can be no question but that the petiscribed in the petition, but with an arm or tion was entirely sufficient to invoke the subsidiary shorter and smaller drain, about general jurisdiction given to circuit courts one-fourth of which in length extended into by the statute stated to order the establishAllen county. The report showed the costs ment and construction of drains. But, it is and expenses of effecting the drainage con urged, the jurisdiction in the particular case templated, together with the damages OC was ousted by the report of the commissioncasioned thereby, would be $313,547. The ers, all from Huntington county, of a drain


view it. This court has determined the con- serve adequately for the drainage contemplattrary. In Lake Shore, etc., R. Co. v. Clough ed. Then the question arises, when on a peti(1914) 182 Ind. 184, 104 N. E. 975, 105 N. E. tion for a drain lying wholly within one coun905, it was held that the jurisdiction of the ty commissioners are appointed who are all subject-matter of drainage proceeding from that county, can such commissioners, in must be determined in the first instance by obeying the injunction of the statute to “lothe petition, and, where once rightfully ac- cate the drain and is the beginning or outlet quired, cannot be taken away by the bare so as to secure the best results," extend the fact that the commissioners added to the beginning a short distance into another coundrain as originally prayed for some addi-ty without ousting the jurisdiction of the tional arm. Such action by the commission- court or without making their report coners would not oust the jurisdiction of the trary to law? Particularly in view of the court as to the drain mentioned in the peti- fact that the statute provides that it shall tion, and would be no grounds for dismissing be liberally construed to promote drainage, the whole proceedings.

we do not hesitate to answer this in the af. [2] Under the first error relied on, which firmative. To hold otherwise might cause an involves numerous and vague separate as- intolerable situation which could be illussignments, it is claimed also that appellants trated in the proceeding before us. Suppose properly raised the question that under the in the lower court timely and proper objecpetition in this case the court had no power tion had been made to the competency of the to order the establishment and construction commissioners, or that the report was not acof the drain reported, and particularly that cording to law, because made by commissionportion of it in Allen county. And the basis ers all from Huntington county, and thereof this claim in part is that before the power upon the court had set aside the report and arises in the circuit court of one county to removed one commissioner and appointed one establish a drain extending into another from Allen county, and they in turn had rethere must be a petition for the same, and ported a drain all in Huntington county. the court must exercise its power through Manifestly in such case the last report would commissioners, one of whom shall be from have to be set aside to preserve consistency. the county into which the drain extends. So a possibility of a ridiculous juridical There can be no doubt that, when landown-deadlock would be presented. A fair interers whose lands require draining know in pretation of the provision in section 6141, advance that a sufficient drain must extend Burns 1914, which requires the court to apinto another county, a petition for the drain point one commissioner from another county should show the fact; and there is also no applies only when the petition is for a drain doubt that on such a petition the court must which is described therein as extending into appoint a commissioner from the other coun- another county. ty. It is equally clear that when, in good Certain other questions are sought to be faith, a petition is presented for a drain raised relating to notice to others. They wholly in the county in which it is filed, all are not vital, and do not directly affect apof the commissioners are to be appointed pellants. from that county. In this case a lack of good [3] The second and third errors which apfaith on the part of the petitioners is assert- pellants' counsel state they rely on for reed without fact, or circumstance, or just versal are based on the following state of grounds to sustain it. In such case what the record: It appears that on March 29, are the powers of the court and the commis- 1912, appellants McCullach and Leland, who sioners? It has long been the law, at least were brought in by the report and notice as far back as the drainage law of 1881, that given of it, appeared, as their pleadings statcircuit courts might establish drains all in ed, specially, and moved to reject and disone county and assess land in contiguous miss the petition and report on the ground counties, if benefited. It has also been the that the drain reported extended into Allen law that such courts had powers to extend county, while all the commissioners appointdrains into adjoining counties. Until the acted by the court and joining in the report of 1907 it was not required that a commis- were residents of Huntington county, and on sioner be appointed from the county into the further grounds that no legal notice had which such a drain extended.

been served on these parties. These motions The commissioners are but instruments of were overruled, and this action of the court, the court, or aids to it in trying questions pre- it is asserted, was error. We do not so view sented by the petition relating to the drain. it. Whether objections, if any, might propThe petition is merely tentative as to the erly be laid against the report which brought character, particular course, and particular these appellants into the proceedings, on the length of the drain. The petitioners are not ground stated in the motion, none of them presumed to know or to settle the best method was reason for rejecting and dismissing the of drainage, or its course or extent. The com- petition, which was in form and substance missioners under the law now and as it has in conformity to the statute. The motion been may reasonably change and add to the was therefore, in any view of the matter, too drain described in the petition so that it will broad, and it was not error to overrule it.

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