This is an action wherein plaintiff, as executor of the estate of one Anna E. McCarty, deceased, seeks the specific performance of a contract to purchase certain real property belonging to said estate. Defendant has undertaken to avoid the contract on various grounds and by cross-complaint seeks to recover a deposit made by him. The trial court denied relief to plaintiff on his complaint and to defendant on his cross-complaint, and each party has appealed from that portion of the judgment adverse to him, both appeals being presented in a joint transcript and joint briefs.
[1] There is no merit in the contention that the bill of exceptions cannot be rightly resorted to in aid of the points made upon appeal. The bill was returned engrossed within the required time, and whether or not it had been correctly engrossed was a matter for the determination of the trial judge. (Merced Bank v. Price, 152 Cal. 697, [93 P. 866].) Although the bill in the instant case had been ordered settled and engrossed, it was not in fact settled at the time the order in question here directing a re-engrossment was made. That is to say, the bill was not then certified as settled and filed as a record of the court, and, of course, this could not be done until it was engrossed. (Fountain Water Co. v. Superior Court,139 Cal. 648, [73 P. 590]; Houghton v. Superior Court,128 Cal. 352, [60 P. 972].) Therefore, plaintiff's application for a re-engrossment of the bill was made in a proceeding which "had not been taken or completed in a legal sense, so as to be susceptible of having applied to it the statutory limit of six months, under section 473 of the Code of Civil Procedure." (Smith v. City of Stockton, 73 Cal. 204, [14 P. 675].) [2] It follows that, even though the bill may have been returned defectively engrossed, the trial judge still retained jurisdictional control over the settlement of the bill, even though the time prescribed for the *Page 197 original presentation of the bill had expired, and accordingly had the power to direct a re-engrossment so as to make the bill conform with verity and brevity by excluding therefrom such matters as were admittedly not necessary to a proper presentation of plaintiff's appeal and obviously of no avail to the defendant's case upon appeal. (Warner v. Thomas etc. Works,105 Cal. 409, [38 P. 960].) [3] Upon plaintiffs application for re-engrossment counsel for defendant was present by agreement and was heard upon his objection that matters material to him would be eliminated by the re-engrossment as ordered, and the court, being fully advised in the matter, denied this objection. In so doing, its order is conclusive, on the record before us, that the matter stricken out was not material. (Hyde v. Boyle, 89 Cal. 590, [26 P. 1092]; In reGates, 90 Cal. 257, [27 P. 195].)
[4] The sale sought to be enforced herein was made pursuant to an order of the probate court which had jurisdiction of the estate of the deceased. Defendant insists, and the trial court held, that the probate court did not have jurisdicion to make the order of sale by reason of a defect in the order to show cause, published as the notice of the hearing of the petition of the executor of the estate for an order authorizing and directing the sale of the real estate involved in the present action. At the time the sale in question was made the Code of Civil Procedure authorized the court to make an order for the sale of real estate comprised in the estate of a decedent in case of necessity to pay debts, family allowance, and the like, or in case it appeared to the satisfaction of the court that it would be for the "advantage, benefit, and best interests of the estate, and those interested therein." (Code Civ. Proc., sec. 1536, prior to 1919 amendment.) Section 1538 of the same code, repealed in 1919, [Stats. 1919, p. 1177], was in effect at the time the sale was made and provided that when it appeared to the court from the petition of the executor or administrator that it was necessary or would be beneficial to sell the whole or some portion of the real estate for the purposes and reasons designated by law, or any of them, the petition must be filed, "and an order thereupon made, directing all persons interested in the estate to appear before the court, at a *Page 198 time and place specified, . . . to show cause why an order should not be granted to the executor or administrator for thesale of such estate." (Italics ours.) The order which is now under attack required all persons interested "to show cause why an order should not be granted to said executor to sell so muchof the real estate of said deceased at private sale, as shallbe necessary." (Italics ours.) Defendant contends that the use of the word "necessary" amounted to a fatal variation from the language required by the statute, and that it was, moveover, positively misleading, inasmuch as the sale was not ordered because it was "necessary" to meet debts, expenses, or the like, but rather on the ground that it would be beneficial to the estate, a ground which, it is insisted, was concealed and even negatived by the wording of the order. The argument is ingenious, but without merit. [5] Reading section 1538 of the Code of Civil Procedure as a whole, it is obvious that the words "such estate" are used to designate, and do in fact mean, so much of the real estate of the deceased as the court in the exercise of its sound discretion may consider necessary to be sold, whether to secure cash to pay debts or the like, or to secure the most advantageous and beneficial administration of the estate, or the advantage, benefit, and best interest of those interested, and it is expressed aptly and plainly by the language of the order to show cause which defendant criticises. The suggestion that the word "necessary," as used in the order, should be construed as "necessary to pay debts and expenses" lies at the foundation of this criticism. The word "necessary," as used in the order, fairly and naturally means "necessary for any lawful purpose," and, so construed, it makes the language of the order comply substantially with the requirement of the statute. The validity of the sale cannot, therefore, be attacked on the ground that the probate court did not acquire jurisdiction to order the sale by reason of any defect in the order to show cause. The view which we have taken of the case makes it unnecessary for us to consider the point raised in the briefs concerning the precise effect upon the validity of subsequent proceedings of a defect in such an order.
The order of sale was valid and within the jurisdiction of the probate court. It is, therefore, doubtful whether the *Page 199 defendant, having failed to appeal from the order confirming the sale, which fixed his liability as a purchaser, has the right to set up, as a defense to the action for the purchase price, alleged defects in the title which were within his knowledge at the time the order of confirmation was made. (Hammond v. Cailleaud, 111 Cal. 206, 220, [52 Am. St. Rep. 167, 43 P. 207].) However that may be, we are of the opinion that there is no merit in any of these defenses. Defendant contends that the claimed defect in the order to show cause, even if not in fact sufficient to vitiate subsequent proceedings, at least threw a sufficient doubt upon the title to make specific performance impossible. It cannot be fairly said that there was any defect in the order to show cause which had the effect of throwing any reasonable doubt upon the title. [6] Defendant's chief ground for resisting the specific performance of his contract with the estate is based upon an alleged failure of plaintiff to perform an agreement that defendant should receive a deed and certificate of title showing title in him free from encumbrances. The record shows that the encumbrance complained of existed openly, notoriously, and continuously throughout the entire period covered by the transactions here in question, and consisted of an easement of way for an electric power transmission line consisting of wires carried upon steel towers sixty feet in height and fourteen feet square at the base, resting upon solid and permanent foundations, one of which towers was known by defendant to be upon the land in question. [7] A general agreement to convey land "free and clear of all encumbrances" does not refer to visible, physical burdens upon the land, permanent in character, and, in the absence of an express agreement, the vendee is presumed to have contracted to accept the land subject to physical encumbrances of an open and notorious nature. (Ferguson v. Edgar, 178 Cal. 17, [171 P. 1061]; Jaques v. Tomb, 179 Cal. 444, [177 P. 280]; Sisk v. Caswell, 14 Cal.App. 377, [112 P. 185]; Brewster on Conveyances, sec. 203.) Therefore even assuming that this representation to convey the land free and clear of encumbrances was made by plaintiff in his capacity as executor and not as an individual, and assuming, also, that the defense may be considered in an action brought by the executor for the purchase price after confirmation *Page 200 of the sale, defendant cannot rely upon the representation as a ground for refusal to perform, for there has been no misrepresentation.
[8] Defendant finally insists that he is excused from performance by the circumstance that the property suffered a ten per cent depreciation in value by reason of a flood occurring between the time of the confirmation of the sale and the date of the commencement of the action. Bearing in mind that prior to the injury to the property defendant was in equity the owner of the land; that he was unquestionably entitled to the possession of the land under the contract with the estate, and that he had actually gone upon the land with men and teams and done about one thousand seven hundred dollars worth of grading, we have no doubt that the risk of loss was upon him.
[9] By virtue of the right conferred by section 1554 of the Code of Civil Procedure, the property might have been resold and the present purchaser held responsible if, on the second sale, enough was not realized to pay costs and the amount of the present bid, but that remedy is not exclusive and does not prevent a resort by the executor to a suit for specific performance. (Crouse v. Peterson, 130 Cal. 169, [80 Am. St. Rep. 89, 62 P. 574].)
It follows from what has been said that plaintiff is entitled to have the contract specifically enforced. The judgment for plaintiff and cross-defendant upon the cross-complaint is affirmed and the judgment for defendant upon the complaint is reversed.
Olney, J., Shaw, J., Wilbur, J., Sloane, J., Lawlor, J., and Angellotti, C. J., concurred.
Rehearing denied.
In denying a rehearing the court filed the following opinion on November 19, 1920: