referable to the rule hereinbefore stated 157 that where the question of the nature of the action is not raised until after the evidence is in, or until after verdict, it should be construed in favor of whichever theory is supported by the testimony. Such statement is, therefore, not to be regarded as laying down a general rule of construction which will apply in the determination, before issue joined, of the character of the was that to which an implied contract entitled the plaintiff; namely, repayment of the money actually received or retained by the defendant.

157 See notes 143 and 144, and text.

158 In Kewaunee County v. Decker, 30 Wis. 624, it was said, with reference to the contention that, where the complaint contains the facts which may be taken as stating a cause of action for money had and received, averments therein that the defendant made fraudulent representations, and acted falsely, fraudulently, and wrongfully in claiming and withholding the moneys, and that he converted the same, etc., may be disregarded as surplusage: "In support of this position, counsel cited several New York decisions, and some in this court, where, after trial and judgment, or after issue has been taken upon the merits, or after the trial has commenced and the plaintiff's case is closed, it has been held that such allegations may be disregarded. The decisions were in actions like the present and others involving a somewhat similar question under the circumstances above stated, and were made in favor of a good cause of action, proved or proposed to be, and which, by fair and reasonable interpretation of the pleadings, could be said to be within the scope of them, or to be fairly mapped out and delineated by the averments, so that the defendant was apprised of the demand made against him, and of the facts relied upon to establish it. The great liberality of the Cole, and the broad powers of amendment conferred and enforced upon the courts under such circumstances, are well known. It is declared that no variance between the allegation in a pleading and the proof shall be deemed material, unless it shall actually mislead the adverse party to his prejudice in maintaining his action or defense upon the merits, and that when the variance is not material, the court may direct the fact to be found in accordance with evidence, or may order an immediate amendment without costs. Most liberal provision is also made for amendments in other respects, by adding to or taking from the pleadings before or after judgment, in furtherance of justice. Where an answer is put in, it is provided that the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. And it is furthermore declared that the court shall, in every stage of an action, disregard any error or defect in the plead ings or proceedings which shall not affect

cause of action which the declaration or complaint attempts to state.158

g. Effect of election between tort and contract.

Where a complaint does not state a cause of action on contract, an election to waive the tort and depend upon the contract cannot change the nature of the cause of acthe substantial rights of the adverse party, and that no judgment shall be reversed or affected by reason of such error or defect. These provisions for the most part, if not entirely, relate to the proceedings in an action after issue joined on the merits, upon or after the trial, or after judgment on the merits, when the facts are made to appear and the substantial rights of the parties are shown. They are enacted in amplification and enlargement of the rules of the common law on the same subjects, by which it is well understood there were many defects, imperfections, and omissions, constituting fatal objections on demurrer, which were cured after issue joined and a trial or verdict and judgment on the merits. The cases cited by counsel are all of them manifestly such as fall within these provisions and rules, and none of them touch or have any bearing upon the question or case here presented. No case arising upon demurrer to the complaint is cited, and it is believed none can be, holding any such doctrine as that contended for. Most of the cases were where no objection was taken until after issue joined and trial had and judgment rendered on the merits, and then the objection was brought forward as a ground of reversal, and generally in the appellate court, that the plaintiff had declared in tort and recovered on contract, or vice versa, or had sued in equity and recovered judgment at law, or that equitable relief had been granted in an action commenced and tried as one on the law side of the court. In all cases the objection had been waived by failure of the party to take it properly and in season, and under the liberal powers of amendment and curative provisions of the Code, it was held that the proceedings or judgments, just in themselves, should not be disturbed upon points of mere form."

And in Jones v. Winsor, 22 S. D. 480, 118 N. W. 716, it was held, upon demurrer, that where a complaint in an action against an attorney for his failure to repay to his client money received from him stated a cause of action for money had and received, and contained allegations as to the conversion by the attorney of such money, and failed to state a cause of action for conversion, the allegations as to conversion could not be treated as surplusage and the complaint held good as an action in assumpsit for money had and received, the court saying: "To so hold would introduce into the law too much uncertainty and ambiguity in pleading, which would have a tendency to

mislead the courts and the opposing party. A complaint should be framed upon the theory that it is either a complaint in tort or one ex contractu, and the two theories cannot be combined in one action; neither

(November 25, 1913.)

be combined in one count in the same action."

drain. Reversed.

The facts are stated in the opinion. Mr. Samuel J. Offutt for appellant. Messrs. Samuel A. Wray and Robert Williamson for appellees.

Spencer, J., delivered the opinion of the

court:

This is a proceeding instituted by appellant to have tiled a certain public drain located in Hancock county. Appellees filed a remonstrance to appellant's petition, and on the issues thus joined the cause was tried by the Hancock circuit court. From a finding and judgment that appellees' remonstrance was sufficient, and that appellant's petition should be dismissed, this appeal is taken.

Appellees have filed a motion to dismiss this appeal on the ground that certain owners of lands which are affected by the drain in question have not been joined as appel

lees. While it is true that such owners were, in a sense, parties to the record, they

in such cases prevents the deduction of a general rule.

LANTZ V. CARAWAY presents the interesting holding that in the absence of an intention expressed in the will to vest title in the executor, the title to realty directed therein to be sold and the proceeds divided passes to the beneficiaries, subject to the

ute?

The sole question presented by the errors assigned is the sufficiency of the two-thirds remonstrance to appellant's petition. Among the parties named in said petition as owners of land affected by the drain were John Manche and John M. Ashcraft. The trial court found that they were not the owners of the land described in the petition, but had only an interest in the proeeeds to be derived from the sale of said land, and were therefore not to be counted in determining the sufficiency of appellees' remonstrance. It appears from the evidence that under the will of one John Ashcraft, who, at the time of his death, was the owner of said described real estate, his widow was to have a life estate in the same, and at her death the land was to be sold and the proceeds divided among his children. Subsequent to his death, and prior to the institution of this proceeding, John

Manche and John M. Ashcraft became the owners of a seven-tenths interest in the proceeds to be derived from the sale of said land upon the death of the life tenant. The question now is, Are they "landowners" right of the executor to sell, and that the doctrine of equitable conversion will not preclude such a beneficiary from being counted as a "landowner," for the purpose of determining the sufficiency of a remonstrance against a proposed improvement of a public drain.

And in Rapp v. Cincinnati & S. & S. R. Co. 9 Ohio Dec. Reprint, 302, under a statute requiring the written consent of the owners of a majority of the frontage to the construction of a street railway it was held that executors having power to sell are not owners within the meaning of the statute, where the property was not devised to them, and that in such case the devisees are the owners. From this conclusion it seems inferable that, had the lands been conveyed to the executors with directions to sell the same, they would have been owners within the purview of the statute, thus raising a distinction between such cases and those where the executor is merely directed or authorized to sell the testator's lands and distribute the proceeds.

John Ashcraft gave positive directions in his will that the real estate in question should be sold on the death of his widow and the proceeds of such sale divided among their children. Appellees contend that under such conditions an equitable conversion of the real estate took place at the death of the testator, and the interests taken by his children under the will assumed the character of personal property from that date. This doctrine of equitable conversion finds support in the following cases: Comer v. Light, 175 Ind. 367, 93 N. E. 660, 94 N. E. 325; Rumsey v. Durham, 5 Ind. 71; Walling v. Scott, 50 Ind. App. 23, 96 N. E. 481, 97 N. E. 388; Nelson v. Nelson, 36 Ind. App. 331, 75 N. E. 679.

This doctrine, however, is not a fixed rule of law, but proceeds upon equitable principles, and its application will depend somewhat upon the circumstances under which it is invoked. As said in Comer v. Light, supra, at page 373 of 175 Ind., it "is interintention of testators so far as that can be posed for the purpose of carrying out the done within the rules of law, and generally for the purposes of equality, and doing equity between heirs or next of kin, where no other rights intervene, but it has never been understood that a testator can change realty to personalty, or vice versa, by the mere declaration that it shall be one or the other." The rule of equitable conversion is having been signed by an executor who had exclusive management of and power to sell certain of the affected dwellings. The court held that he had no authority to sign the consent under the statute, the requirement being that the consent be "executed by the owner or owners, or by the duly authorized agent or agents of such owner owners," etc. This holding was upon the ground that the statute means only such agents as are duly authorized by the owner to sign the consent in his behalf, but, in effect is also a decision that the executor, although he had power to sell the property, and as a matter of fact did sell it prior to the filing of the application for the license, was not the "owner" of the property at the time he signed the consent.

or

In LANTZ V. CARAWAY, it will be observed that the existence of a power of sale, which for some purposes operated as an equitable conversion, did not affect the status of

applicable as between the testator and the specific beneficiary to determine the character of the estate which the latter is ultimately to receive under the will, and, in the absence of any expressed contrary intention on the part of the testator, the share of a beneficiary who dies before the termination of the life estate will generally pass as that character of property which he would have received upon the death of the life tenant. Rumsey v. Durham, 5 Ind. 71; Nelson v. Nelson, 36 Ind. App. 331, 75 N. E. 679; 9 Cyc. 851, and cases cited.

real estate be sold and the proceeds distributed, but without passing the legal title to the executor. In the one case it is held that the executor is the custodian of the title until devested by the sale, while in the other title is held to be in the beneficiary or the heir until the sale is made.” See also Brumfield v. Drook, 101 Ind. 190; Thompson v. Schenck, 16 Ind. 194.

The presumption against intestacy is sufficient to lead to the conclusion that the testator did not intend that the legal title to his land should remain undisposed of, and the necessary implication is that such title passes under the will. Since it can vest in neither the life tenant nor the executor, unless such intention is expressed, it is obvious that it must pass to the holder of the beneficial interest. The decisions of the several states are not in accord on this question, but the conclusion reached has been adopted as the rule in this state.

Whether the title vests in the executor depends on the language used in the will. To quote from Bowen v. Swander, supra, at page 170 of 121 Ind.: "The courts have made a distinction between a devise to the executor of real estate, with directions to sell the same and make distribution of the proceeds, and a devise which directs that the persons in whom the legal title to the real property was vested, in this case devisees as the owners of the property entitled as such to sign the remonstrance. So, in People ex rel. Shaw v. Scott, 8 Hun, 566, it was held or assumed that the fact that there was for some purposes an equitable conversion under the terms of the will did not affect the status of the holders of the legal title,-in this case the heirs at law, as owners entitled as such to sign the consent. The difference in the results in the two cases is due to a difference of opinion as to whether the title vested in the devisees or in the heirs. In the Shaw Case, a testator by his will, which named no executor, having directed that certain realty be sold and the proceeds be divided between the children of his present wife, the court decreed that, for the purpose of signing a certificate as to the necessity and propriety of opening a highway through the property directed to be sold, a child by a former wife was a freeholder until a sale should be made pursuant to the will. In this connection it was said: "By the common law the land descends to the heir unless devised to somebody else (4 Kent, Com. 375); and the heir is not to be deprived of the inheritance except by express words or necessary implication. To take away the right of the heir. the utmost certainty of the

not all, of the elements of a qualified fee, is liable to attachment and sale under execution, or may be conveyed by him to another, the purchaser thereby taking the beneficiary's share in the proceeds, and taking title to the property as against all persons but the life tenant and the right of the executor to sell said property when the contingency arises. Indiana R. Co. v. Morgan, testator's intention is required. 1 Bl. Com. 450. The clause [of the will] in question directs a sale of the 40-acre lot, and a division of the proceeds. A power in trust to sell and divide is thereby implied, and, if an executor had been named, probably the power in trust would have devolved on him; but in the absence of such appointment, the court will appoint a trustee; such trustee of the power will not take the title to the land, but a naked power. Where, in the meantime, does the title vest? can only vest in the heirs at law, subject to the execution of the power of sale. Such a provision in a will is not a devise of the land to the distributees. The gift was of money, not of land. Conceding that, for equitable purposes, the land is to be deemed as converted into money, yet it is not so converted, and in the meantime the legal title must vest in somebody; unless devised to somebody else, it descends to the heirs at law, and the mere legal title is the subject of inquiry. If the power had been by the will devolved upon executors or other trustees, then, as they were not empowered to receive the rents and profits, the statute declares that no estate shall vest in the trustees, but the land descends to the heirs, subject to the execution of the power."

G. J. C.

It