Post v. Williams

McCurdy, J. The respondents ask that the report of the. committee be rejected on two grounds. 1st. That the oath taken by them was the ordinary one for committees in chancery and not the particular one prescribed by statute for this case. The proceeding is a suit in chancery, and the common oath is in substance that the committee will find the facts and report them to the court. The special oath by the act of 1859 requires the committee to find the facts and “ ascertain and establish the bounds,” and report the same to the court. The meaning is that they shall find and fix the true places of the bounds and make report of these among the facts for the final decision of the court. The whole duty seems to be embraced in- the general oath, and there is no pretence that the finding of the committee was affected in the least by their having taken one oath instead of the other. The objection therefore is not one to be favored, and we think it is fully obviated by the facts in the case. At the meeting of the committee the counsel for the respondents inquired what oath should be administered. The counsel for the petitioner replied that any oath would answer. The counsel for the respondents, having before him the oath prescribed for committees in chancery, asked whether that was the proper one. The counsel for the petitioner said it was? or would do* or words to that effect, and so it was adminis [153] te red.' Thereupon, a long and expensive trial ensued resulting favorably to the petitioner; and then for the first time the respondents’ counsel started an objection that the oath which he assented to as the proper one, which indeed he may be said to have presented himself, was illegal and the whole proceedings were void. The petitioner claims that the cavil is too late, that the respondents have waived the exception and are estopped from setting it up. The respondents urge that the difficulty arises=out of the express provisions of the statute and is insuperable. There are certainly numerous decisions in our reports that the positive requirements of statutes in certain cases must be exactly complied with. But there are quite as many, especially of late years, to the effect that although an error may be of a fatal nature, yet the right to take advantage of it may be lost by laches or waiver creating an estoppel. In- many of the cases where the rule of strictness prevailed it was given as a prominent reason that the purpose of- the process was to take away the property of the party by a proceeding in invitum. In other cases the question of waiver or estoppel was not raised by the counsel, and in some the dictum of the judge was not required in the case. So far as there is a conflict, those decisions are most consistent with sense and justice and analogy which prevent a party from going to trial on the merits and accepting the result if favorable, but if otherwise taking advantage of a technical difficulty which he knew of or should have known of from the beginning. The respondents claim that the error in this case was the consequence of an innocent mistake 5 that there was no intentional waiver, and that the rules respecting waiver and estoppel do not apply. But it is a well known principle that culpable negligence in not ascertaining a fact may be held equivalent to a knowledge of it and a relinquishment of its benefits. The mistake in this case was not one of fact but of law, an ignorance of the provisions of a public statute, a special one authorizing a peculiar proceeding and directing the particular steps, a statute under which the parties were acting and whose provisions they were bound to know. There [154] can hardly be an instance of grosser negligence than their failing to read it. The general rule is that where the court has jurisdiction of the parties and the cause, and there has been in the course of the proceedings an irregularity which might be fatal, as the omission to do some act required by law or the doing it improperly, the objection may be waived, or a party may be estopped from raising it. For cases bearing upon this subject we refer to Smith v. State, 19 Conn., 494 ; Crone v. Daniels, 20 id., 331; Taylor v. Ely, 25 id., 250; Sherwood v. Stevens, 25 id., 431; Danforth v. Adams, 29 id., 107 ; Payne v. Farmers & Citizens Bank, 29 id., 415 ; State v. Hyde, 29 id., 564; Calhoun v. Richardson, 30 id., 210 ; Bailey v. Trumbull, 31 id., 581; Kellogg v. Brown, 32 id., 108, and a learned note by the reporter, 111; Goodwin v. Mason, 5 N. Hamp., 458. The second objection is that the committee did not report the facts. But this is clearly without foundation. The facts to be found and reported are only those put in issue by the pleadings, and these fully appear in the report. A recapitulatibn of the evidence as claimed by the respondents is neither necessary nor proper. It is further said that the finding of the court shows that the boundaries of the lots were never lost or obscure, and that the true line is that which is contended for by the respondents. These were the questions of fact which'were in issue between the parties and which were passed upon by the committee ; and even if it were permissible to go over their heads .and inquire into the justice of their decision we see no reason to doubt its correctness. We advise that the report be accepted and a decree passed in favor of the petitioner. ' In this opinion the other judges concurred ; except Dutton, J., who having tried the case in the court below did not sit,