(225 Mass. 320) JUSTICE. SODERLUND et al. (Supreme Judicial Court of Massachusetts. Middlesex, Dec. 6, 1916.) 1. EXECUTORS AND ADMINISTRATORS 138(3) -SALE OF REALTY-PROBATE LICENSE. The will giving the executors power to sell the real estate for payment of mortgage, no license from the probate court is necessary for sale for such purposes. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 563, 564; Dec. Dig. 138(3).] 2. EXECUTORS AND ADMINISTRATORS 143SALE OF REALTY-RECOrd. For validity of an executor's sale under power in the will to pay the mortgages and legacies, it was not necessary that all the facts appear of record. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 557, 578; Dec. Dig. 143.] 145 3. EXECUTORS AND ADMINISTRATORS whole or any part of said real estate." The legacies amounted to $19,500. "The mortgages referred to in the will were somewhere about $5,500 or $6,000." Her personal estate was inventoried at $8,193.47. The debts, including funeral expenses and taxes, were approximately $5,143. The testatrix owned a large tract of land in Newton, and the executors acting under the powers in the will, without obtaining a license to sell from the probate court, sold at public auction, in October, 1912, some of the lots into which the tract was divided. The total amount of these sales was $18,176.60. "But four parcels were not taken, * leaving a little over $10,000 actual money received from the auction sale, which was not enough to pay the mortgages and legacies." At this sale of October, 1912, the plaintiff at the time of sale. purchased lot No. 18 for $250.25, paying $100 A quitclaim deed, unsigned, was prepared and sent to the attorney for the plaintiff, describing the land sold as lot No. 27. The form of the deed was objected to on the ground that the executors had no title under the will and could not [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 585-587; convey by quitclaim deed, and that a license Dec. Dig. 145.] 4. SPECIFIC PERFORMANCE 101 SALE OF LAND OBJECTION TO DEED. The purchaser of land from executors having placed his objection to their deed on other grounds cannot in his suit for specific performance complain of any mistake in the deed as to the number of the lot, which would have been corrected immediately, had objection been based thereon. [Ed. Note. For other cases, see Specific Performance, Cent. Dig. 88 290, 295, 311-317; Dec. Dig. 101.] 5. SPECIFIC PERFORMANCE •105(3)—LACHES. Purchaser of land at executor's sale, having made no effort for three years to get a deed, and no offer to pay the remainder of the purchase price, was guilty of laches, barring right to specific performance, after the executors had sold to others, notwithstanding his occupation of the premises, unknown to the executors. [Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 327-341; Dec. Dig. 105(3).] Appeal from Superior Court, Middlesex County; John D. McLaughlin, Judge. Action by Charles H. Justice against N. J. Soderlund and others. From an adverse decree, plaintiff appeals. Affirmed. Ralph S. Bartlett, of Boston, for appellant. Arthur W. Blakemore and Herbert A. Horgan, both of Boston, for appellees. CARROLL, J. [1] Maria M. Gay, who died June 5, 1911, in the sixteenth clause of her will directed her executors to "sell such portion of my estate as may be necessary to pay off the mortgage now thereon, and then to sell such portion as may be necessary to pay the legacies herein made," and for this purpose they were authorized "to sell at their discretion the from the probate court was necessary to make such a sale; but no objection was made to the deed because of the error in describing the number of the lot. Further correspondence passed between one of the executors and the representative of the plaintiff. The last letter was November 2, 1912, when the plaintiff was informed the executors had ready for delivery a deed of lot 27. The plaintiff entered upon the premises, cultivating the land and setting out shrubs and trees thereon, the executors paying the taxes. The plaintiff made no further effort to secure a deed of the premises. In the latter part of 1915, the executors sold lot 18 to the defendant Soderlund. In November, 1915, the plaintiff brought this bill for the specific performance of the contract of October, 1912, praying that the executor be directed to execute and deliver to him a good and sufficient deed of the lot purchased. In the superior court the bill was dismissed. By the will of the testatrix the executors were given the power to sell her real estate for the payment of the mortgage and legacies. The evidence shows the sale to have been proper, for this purpose, and no license from the probate court was necessary. It was said by Chief Justice Shaw in Going v. Emery, 16 Pick. 107, 113, 26 Am. Dec. 645: "Whenever an executor has the power under a will to sell real estate, no license of any court is necessary to, or can give an additional validity to any sale and conveyance which he may make. And it is considered a good reason for refusing such license, that the power already exists." See McLaughlin v. Greene, 198 Mass. 153, 83 N. E. 1112, and cases cited. Allen v. Dean, 148 Mass. 594, 20 N. E. 314, 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 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 require." The settlement of the estate meant the settlement of the probate accounts, the payment of debts, legacies, and the charges of administration; and it was held that there was nothing in the will showing the testator used the words in any other sense, and no power was given to sell the real estate for the purpose of making partition among the devisees. In Litchfield v. Cudworth, 15 Pick. 23, the administrator was licensed to sell to the amount of $640. He sold the whole estate for $953.33, and because he exceeded his authority, the sale was void. In Bremer v. Hadley, 196 Mass. 217, 81 N. E. 961, no power was given to sell any part of the trust property or to reinvest the fund. [2] The mortgage and legacies aggregated $25,000, and while the property inventoried at $30,000 was put up for sale, only $10,000 worth was sold. It was not required that these facts should all appear of record, nor did the executors, in proceeding as they did, exceed the authority conferred upon them. McLaughlin v. Greene, supra. [3] In the deed the executors used the words, "remise, release and forever quitclaim." They did not use the word "grant." Although the instrument was made prior to St. 1912, c. 502, it was sufficient in form. It was unnecessary to employ this particular word. Wainwright v. Sawyer, 150 Mass [4] The deed which was offered referred to the premises as "lot 27 as shown on a plan * recorded with Middlesex South District Deeds," followed by a detailed description; while the same lot on the plan used at the trial is lot No. 18. The plaintiff did not object to the deed on the ground of any alleged mistake in the number of the lot. He based his objections on other grounds. As the judge found, "The parties seemed to agree at the hearing that the error would have been immediately rectified if the deed had been satisfactory in other respects," and the plaintiff expressly "withdrew any charge of fraud in numbering the lots." The plaintiff cannot now be heard to complain that there was a mistake in the number of the lot in the deed, if, indeed, on the whole record there was any mistake. [5] The plaintiff was guilty of laches and the judge was clearly right in so finding. Three years lapsed after the purchase before the plaintiff made any effort to secure a deed. He made no offer to pay the remainder of the purchase price and he did not proceed within a reasonable time to protect his rights. See Mansfield v. Wilde, 221 Mass. 75, 83, 108 N. E. 901. His occupation of the premises, as shown by the evidence, without the knowledge of the executors, was no excuse for this delay. Decree of the superior court affirmed with costs. (187 Ind. 37) until long after they had and filed McCLEERY et al. . ZINTSMASTER et al* their remonstrances was appeared (No. 22404.) (Supreme Court of Indiana. Dec. 21, 1916.) 1. DRAINS 26- PROCEEDINGS - JURISDICTION-STATUTE. Where the circuit court of a county rightfully acquired jurisdiction of a petition for the establishment of a drain wholly within the county, the action of the commissioners appointed in including in their report a small arm extending into another county would not oust the jurisdiction of the court as to the drain mentioned in the petition, and would not be grounds for dismissing the whole proceedings. [Ed. Note.-For other cases, see Drains, Cent. Dig. 18; Dec. Dig. 26.] 2. DRAINS26-ESTABLISHMENT-POWER OF COMMISSIONERS-STATUTE. In view of Drainage Act (Burns' Ann. St. 1914, § 6140 et seq.), providing that drainage commissioners shall locate the drain and fix the beginning or outlet so as to secure the best results, the provisions of section 6141, requiring the court to appoint one commissioner from every county, applies only when the petition is for a drain extending into another county, and, on petition for a drain lying wholly within one county, commissioners appointed from that county may extend the beginning of the drain a short distance into another county without ousting the jurisdiction of the court or making their report contrary to law. [Ed. Note.-For other cases, see Drains, Cent. Dig. 18; Dec. Dig. 26.] 3. DRAINS 33-PROCEEDINGS-MOTION TO REJECT. Where a petition was in conformity with the statute for a drain lying wholly in one county, and the commissioners' report provided for a drain with an arm extending into another county, a motion to reject the petition and report on this ground was too broad, and was properly overruled. [Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 34, 35, 53, 80; Dec. Dig. 33.] 4. DRAINS 33-PROCEEDINGS-COMMISSIONERS' REPORT-MOTION TO STRIKE. Where the petition was for a drain lying wholly within one county, and the commissioners' report provided for a drain with an arm extending into another county, the court could not strike on motion everything in it relating to that part which extended into another county, since the drain and arm were reported as a whole, and the assessment was apportioned as one system. [Ed. Note. For other cases, see Drains, Cent. Dig. 88 34, 35, 53, 80; Dec. Dig. 33.] 5. DRAINS 33-PROCEEDINGS-COMMISSIONERS' REPORT-MOTION TO STRIKE. Where a petition was for a drain lying wholly within one county, and the commissioners reported a drain with an arm extending into another county, an objection that the report of the commissioners was not according to law is the proper proceeding, and not a motion to strike out everything in the report relating to that part of the drain which extended into another county. [Ed Note. For other cases, see Drains, Cent. Dig. 88 34, 35, 53, 80; Dec. Dig. 33.] 6. DRAINS 30-PROCEEDINGS-NOTICE TO OBJECTORS. Where notice to objectors was sufficient to bring the parties into court, the action of the court in overruling a motion to strike out the proof and return of service of notice not filed [Ed. Note.-For other cases, see Drains, Cent. Dig. 88 25-28; Dec. Dig. 30.] 7. DRAINS 33 PROCEEDINGS REMON The question of the sufficiency of the evidence to support findings that the costs, damages, and expenses would not exceed the benefits could not be preserved for review by an exception to the conclusion of law that the proposed drain should be established, as exceptions to the conclusions of law admit the facts to be well found, but the question should have been presented by a motion for new trial on that ground. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1724, 1725, 1728-1735; Dec. Dig. 294(2).] 9. TRIAL 400(2) DEFECTS-REMEDY. FINDINGS BY COURT Where any or all facts are not sustained by the evidence, or are contrary to law, the proper remedy is by motion for new trial, and a motion to modify and correct the court's special findings is not a recognized practice and was properly overruled. [Ed. Note.-For other cases; see Trial, Cent. Dig. § 950; Dec. Dig. 400(2).] 10. DRAINS 34-PROCEEDINGS-EVIDENCE REPORT OF COMMISSIONERS. The report of the commissioners was competent evidence in proceeding to establish drain. Dig. 88 36-39, 43; Dec. Dig. 34. 11. DRAINS 34-PROCEEDINGS-EVIDENCE- The admission of agreements made between the petitioners and two groups of landowners who were contesting their individual assessments, reducing the assessments to sums fixed, which it was agreed represented benefits in full to the land, was not error. [Ed. Note. For other cases, see Drains, Cent. Dig. 88 36-39, 43; Dec. Dig. 34.] 12. DRAINS 69- PROCEEDINGS - ASSESS MENTS. Objectors were not entitled to credit for prior drainage assessments for other drains, the question being to what extent their land is benefited, even under Burns' Ann. St. 1901, § 5657, the provision of which was not included in the present law. [Ed. Note.-For other cases, see Drains, Cent. Dig. § 75; Dec. Dig. 69.] Appeal from Circuit Court, Huntington County; Robert Van Atta, Special Judge. Proceeding by D. W. Zintsmaster and others to establish a public drain, opposed by John P. McCleery and others. From a judgment establishing the drain and overruling their motions for a new trial, objectors appeal. Affirmed. S. M. Sayler, of Huntington, and T. E. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 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 Wells counties. COX, J. This was a proceeding institut- lying in Huntington, Allen, Whitley, and ed by appellees in the circuit court of HuntTo 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 brought in by the report but who do not apnumerous errors are assigned, is brought. peal from the final order establishing and ordering the construction of the drain. In addition to this many motions and remonstrances were filed by appellants before the trial. All of these motions were overruled other parties who do not appeal. By request The petition of appellees was in the usual form of a petition for a drain wholly in one county, and it averred, in substance, that the petitioners were the owners of about 1,100 acres of land in Huntington county, 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 McClelThe complished without affecting the lands of lan Branstrattor were stricken out. 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 that the best and cheapest method for the proper drainage of the lands in question would be by an open drain beginning in the Little Wabash river, commonly known as Little river, on the line dividing Huntington and Allen counties, and running in a south-inextricably confused. westerly direction from the point of begin-assignments of error are made by appellants ning, following generally the course of the river to a named point therein where it should terminate. It was averred that the contemplated drain would benefit the public health; that it would benefit certain public highways in Allen and Huntington counties; that when completed the proposed drain would be of public utility; and that the damages occasioned thereby and the costs thereof would be less than the benefits which would result therefrom to the owners of lands affected thereby. Upon proof of notice of the filing of the petition given to the owners of those lands named therein as affected, the petition was on March 25, 1910, docketed as a cause. On April 20th following, there having been no remonstrance, objection, or demurrer to the petition, the matter was referred to Benjamin Heaston, drainage commissioner of the county, James B. Vernon, a surveyor resident in the county, and William F. Fulton, a disinterested resident freeholder of the county, and September 5, 1910, was fixed as the date on which they were to report. The time for filing a report was extended from time to time until February 26, 1912, on which date it was filed. The report was favorable to the construction of a principal drain all in Huntington county substantially the same as the one described in the petition, but with an arm or subsidiary shorter and smaller drain, about one-fourth of which in length extended into Allen county. The report showed the costs and expenses of effecting the drainage contemplated, together with the damages occasioned thereby, would be $313,547. The severally and collectively, and these assign- At the outset of their argument it is conceded by appellants that the drain here involved is much needed and should be constructed. Its purpose is to provide a sufficient outlet for a very extensive basin. In the upper part of the basin large drains have been constructed which conduct the surface waters in great volumes onto the lower end where the outlet is not sufficient to carry it on. This is greatly to the detriment of the landowners in the lower end of the basin, the petitioners, and in a lesser degree to all affected. [1] It is first asserted generally that the Huntington circuit court had no jurisdiction to establish and order the construction of the drain reported, for the reason that a small part of it extended beyond the boundary of Huntington county into Allen county. There can be no question but that the petition was entirely sufficient to invoke the general jurisdiction given to circuit courts by the statute stated to order the establishment and construction of drains. But, it is urged, the jurisdiction in the particular case was ousted by the report of the commissioners, 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 a 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 fix 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 affirmative. To hold otherwise might cause an intolerable situation which could be illustrated in the proceeding before us. Suppose in the lower court timely and proper objection had been made to the competency of the commissioners, or that the report was not according to law, because made by commissioners all from Huntington county, and thereupon the court had set aside the report and removed one commissioner and appointed one from Allen county, and they in turn had reported a drain all in Huntington county. Manifestly in such case the last report would have to be set aside to preserve consistency. So a possibility of a ridiculous juridical deadlock would be presented. A fair interpretation of the provision in section 6141, Burns 1914, which requires the court to appoint one commissioner from another county applies only when the petition is for a drain which is described therein as extending into another county. [2] Under the first error relied on, which involves numerous and vague separate assignments, it is claimed also that appellants properly raised the question that under the petition in this case the court had no power to order the establishment and construction of the drain reported, and particularly that portion of it in Allen county. And the basis of this claim in part is that before the power arises in the circuit court of one county to establish a drain extending into another there must be a petition for the same, and the court must exercise its power through commissioners, one of whom shall be from the county into which the drain extends. There can be no doubt that, when landowners whose lands require draining know in advance that a sufficient drain must extend into another county, a petition for the drain should show the fact; and there is also no doubt that on such a petition the court must appoint a commissioner from the other county. It is equally clear that when, in good faith, a petition is presented for a drain wholly in the county in which it is filed, all of the commissioners are to be appointed 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 are the powers of the court and the commissioners? It has long been the law, at least as far back as the drainage law of 1881, that circuit courts might establish drains all in one county and assess land in contiguous counties, if benefited. It has also been the law that such courts had powers to extend drains into adjoining counties. Until the act of 1907 it was not required that a commissioner be appointed from the county into which such a drain extended. The commissioners are but instruments of the court, or aids to it in trying questions presented by the petition relating to the drain. The petition is merely tentative as to the character, particular course, and particular length of the drain. The petitioners are not presumed to know or to settle the best method of drainage, or its course or extent. The commissioners under the law now and as it has been may reasonably change and add to the drain described in the petition so that it will They Certain other questions are sought to be raised relating to notice to others. are not vital, and do not directly affect appellants. the record: It appears that on March 29, 1912, appellants McCullach and Leland, who were brought in by the report and notice given of it, appeared, as their pleadings stated, specially, and moved to reject and dismiss the petition and report on the ground that the drain reported extended into Allen county, while all the commissioners appointed by the court and joining in the report were residents of Huntington county, and on the further grounds that no legal notice had been served on these parties. These motions were overruled, and this action of the court, it is asserted, was error. We do not so view it. Whether objections, if any, might properly be laid against the report which brought these appellants into the proceedings, on the ground stated in the motion, none of them was reason for rejecting and dismissing the petition, which was in form and substance in conformity to the statute. The motion was therefore, in any view of the matter, too broad, and it was not error to overrule it. |