#### S. P. DRY, Administrator of JOHN T. DRY, Deceased, v. THE BOARD OF DRAINAGE COMMISSIONERS OF CABARRUS COUNTY, DRAINAGE DISTRICT No. 6, and H. M. JOHNSTON, H. G. BRADFORD and R. C. BRADFORD, Drainage Commissioners.

(Filed 30 October, 1940.)

1. Pleadings § 5: Drainage Districts § 16—

In an action to recover upon bonds of a drainage district, allegations of ownership and amount of tbe bonds, their maturity, demand for payment and prayer for *mandamus*to require the imposition and collection of assessments for their payment, will support judgment for the recovery of the money due upon the bonds, notwithstanding the absence of a specific prayer for judgment for the money, since the relief to which the plaintiff is entitled is determined by the facts alleged and not by the prayer for relief.

2. Drainage Districts § 16: Mandamus § 2c — Municipality may waive condition precedent to mandamus that claim he reduced to final judgment and that resources for its satisfaction he shown.

The provisions of C. S., 867, requiring that in an application for a writ of *mandamus*to enforce a money demand *ex contractu*against a municipal corporation the complaint should show that the claim or debt has been reduced to final judgment and should show what resources are available for the satisfaction of the judgment, and the actual value of all property sought to be subjected to additional taxation, and the necessity for the issuance of the writ, are provisions for the protection of the municipality which may be waived by it, and where the municipality does not make objection and agrees that the issues of fact and of law be submitted to the court, it waives the provisions of the statute. Whether action for the recovery of the money demand and a petition for *mandamus*to effectuate the judgment may be united in the same action, see G. S., 5356.

3. Drainage Districts § 16 — Questions relating to duty of commissioners in management of fiscal affairs and collection of drainage liens held immaterial in bondholder’s action to recover on bonds of district.

This action was instituted to recover on drainage bonds issued by defendant district. Defendants’ answer alleged that certain landowners *357in the district paid their assessments in cash prior to the issuance of bonds but that there was no record identifying them with reference to the record upon which assessments were apportioned, that the value of lands within the district had declined so that in many instances the assessments exceeded the value of the land, that the district had improved the roads of two counties and prayed that the counties be made parties to determine their respective liability to the district, that plaintiff was not entitled to priority over other holders of the bonds of the district, and that the amount of special assessments could not be determined until exhaustion of all remedies of the district, and requested instructions from the court as to the duties of defendant commissioners in levying the special assessment demanded and in respect to the enforcement and collection of liens against the various classifications of lands within the district. *SelA:*It was not error for the court to confine its investigation to the issues existing solely between plaintiff and defendants even in the absence of a motion to strike the extraneous matter from the answer, and its judgment upon the bonds and order for the assessment and collection of a sufficient amount of money to pay plaintiff’s judgment is upheld. Many of the administrative questions presented by the answer might be solved by court action in a proceeding properly constituted, but not in this action.

Appeal by defendants from *Ervin, Special Judge,*at August Term, 1940, of Cabarrus.

Affirmed.

Tbe plaintiff administrator brought this action to recover judgment on certain bonds of tbe defendant Drainage District wbicb bad been sold to plaintiffs intestate and are now a part of bis estate. Plaintiff also prayed tbat a writ of *mandamus*issue to compel tbe defendant commissioners to levy a tax for tbe payment of tbe judgment. Tbe defendants answered, admitting tbe formal allegations of tbe complaint, and tbe issue of tbe bonds described in tbe complaint made payable to bearer; and denied knowledge of tbe present ownership of tbe bonds or their presentation for payment.

As a further defense, tbe defendants set up tbat certain owners of lands in tbe Drainage District bad availed themselves of tbe option to pay cash upon tbe assessments made against them for tbe said bonds; tbat tbe total cost of improvements and maintenance for three years bad been $30,026.20; tbat there was no record in the clerk’s office identifying persons who paid cash assessments totaling $12,740.19, with reference to tbe record upon wbicb assessments have been apportioned; tbat tbe depression beginning in 1929 forced down values of real estate and left tbe land in idleness, so tbat now tbe assessments in many instances are more than tbe land is worth; tbat the District bad taken loss by sale of property, and tbat sale of lands bad failed to bring the amount of tbe assessment, and tbat no one would bid when lands were subject to further assessment; tbat tbe Government bad spent much money on tbe Drainage District but tbat drainage was still insufficient; tbat tbe lands were materially reduced in value by dyestuffs and sewage emptied in tbe *358upper portion of tbe river by mills and towns on tbe watershed. Specific instances are given of low bids on lands witbin tbe district; and it is alleged tbat tbe drainage commissioners bad ordered steps taken for foreclosure; tbat certain benefits were to be received by tbe roads of Mecklenburg County, and tbat repeated demands bave been made tbat “benefits to tbe roads of tbe respective counties should be paid.” It-is alleged tbat there is no way at this time to tell what amount of special assessments should be made until foreclosures and other remedies are exhausted against all tbe lands. Following this, certain questions are asked: “In what amount a special assessment shall be made ? Shall it include tbe lands in tbe district tbe owners of which bave paid their assessments in cash prior to tbe issuing of tbe bonds? Shall it include tbe lands foreclosed and bought in by tbe Drainage Board, title to which is now in tbe Drainage Board? Shall it include tbe lands which bave been foreclosed and bid in by and title made to persons other than tbe Board of Drainage Commissioners? Shall it include lands still owing-assessments and not yet foreclosed? Shall it include lands tbat went into tbe bonds, tbe owners of which bave paid out in full since tbe bonds were issued?

Tbe answer further sets up tbat there are a large number of bonds, other than those involved in this action, outstanding against tbe Drainage District.

Upon these questions tbe further defense demands “tbat tbe Board of Drainage Commissioners be definitely instructed by declaratory judgment as to its further duties.”

When tbe case was reached for a bearing, tbe parties waived trial by jury and submitted tbe issues of fact and of law to tbe court.

Finding tbe facts upon tbe admissions in tbe pleadings and tbe evidence before him, tbe trial court granted judgment upon tbe bonds held by plaintiff, allowed tbe petition for *mandamus,*and ordered tbe assessment and collection of “a sufficient amount of money to pay tbe judgment of tbe plaintiff, interest to date of payment, and of costs.” Thereupon, defendants appealed.

*llartsell & Hartsell for plaintiff, appellee.*

*J. Lee Crowell, Jr., for defendants, appellants.*

Seawell, J.

In tbe chapter on Civil Procedure and sub-chapter relating to *mandamus,*tbe following occurs: “867. For money demand. In application for a writ of *mandamus*when tbe plaintiff seeks to enforce a money demand, tbe summons, pleadings and practice are tbe same as prescribed for civil actions: ‘Provided tbat in all applications seeking a writ of *mandamus*to enforce a money demand on actions *ex contractu*
      *359against any county, city, town or taxing district witbin tbe State, tbe applicant shall allege and show in tbe complaint that tbe claim or debt has been reduced to a final judgment establishing what part of said judgment, if any, remains unpaid, what resources, if any, are available for tbe satisfaction of tbe judgment, including tbe actual value of all property sought to be subjected to additional taxation and tbe necessity for tbe issuing of such writ.”

Apparently tbe complaint in this case was drawn without reference to this statute, since it merely sets up tbe amount and ownership of tbe bonds, their maturity and demand, with other more formal allegations, and asks that *mandamus*may issue requiring tbe imposition and collection of assessments for their payment. Prayer for judgment for tbe money is not specifically made.

No doubt, judgment for recovery of.the money due upon tbe bonds was correctly entered, since tbe plaintiff is entitled to any relief which tbe facts set up in tbe complaint warrant. *Knight v. Houghtalling,*85 N. C., 17; *Gattis v. Kilgo,*125 N. C., 133, 135, 34 S. E., 246; *Bolich v. Ins. Co.,*206 N. C., 144, 172 S. E., 320; *McNeill v. Hodges,*105 N. C., 52, 11 S. E., 265. However, a serious question arises as to whether or not tbe plaintiff is entitled to sue for judgment on tbe bonds and for a writ of *mandamus*in tbe same action.

Prior to tbe 1933 amendment, tbe writ of *mandamus*was available to compel tbe levy of taxes and assessments to pay tbe principal and interest on bonds and liabilities *ex contractu*which bad not been reduced to judgment. *Casualty Co. v. Comrs. of Saluda,*214 N. C., 235, 238, 199 S. E., 7. But, under chapter 349, Public Laws of 1933, amending C. S., 867, tbe petitioner for *mandamus*must allege and show that tbe claim has been reduced to judgment. Whether tbe purpose of tbe statute might not be satisfied by uniting a cause of action for tbe recovery of tbe money and a petition for *mandamus*to effectuate tbe judgment in tbe same action, see C. S., 5356.

It is true that tbe use of tbe writ of *mandamus*in matters of this kind has been much simplified: “Such proceedings are not proceedings in equity. *Walkley v. Muscatine,*6 Wall. (U. S.), 481; *Thompson v. Allen County,*115 U. S., 550. Under our own practice, *mandamus*is put to statutory uses, and both by custom and authority has been deprived of much of its common law character. Tbe writ is no longer, as at common law, a high prerogative writ; *Belmont v. Reilly,*71 N. C., 260; *Burton v. Furman,*115 N. C., 166, 168, 20 S. E., 443; and tbe court has no discretion to refuse it when it is sought to enforce a clear legal right to which it is appropriate. *Hammond v. Charlotte,*206 N. C., 604, 175 S. E., 148; *Hickory v. Catawba County,*206 N. C., 165, 173 S. E., 56; *Braddy v. Winston-Salem,*201 N. C., 301, 159 S. E., 310; *360
      *Cody v. Barrett,*200 N. C., 43, 156 S. E., 146; *Hayes v. Benton,*193 N. C., 379, 137 S. E., 169; *Person v. Watts,*184 N. C., 499, 115 S. E., 336. *Mandamus*is as much an instrument of enforcement at law as it is an aid in equity, and, as sought here, may be considered the equivalent of execution. *Bear v. Comrs.,*124 N. C., 204, 210, 32 S. E., 558; *United States v. Oswego,*28 Fed., 55; *Chicago v. Hasley,*25 Ill., 595.” *Casualty Co. v. Comrs. of Saluda, supra.*

Still our statute seems to be reminiscent of the equitable origin of the proceeding, having regard for matters that have been heretofore cognizable in equity when the writ was discretionary. It does more than require that judgment be taken before the remedy is available: It must be alleged and shown “what resources, if any, are available for the satisfaction of the judgment, including the actual value of all property sought to be subjected to additional taxation and the necessity of such writ.” There is no averment of this sort in the complaint and no corresponding proof. But to what extent these considerations condition proper exercise of the writ, we do not find it necessary to determine at this time. The statute was enacted for the protection of municipalities and taxing bodies, and we do not question that this protection may be waived. Failure to assert it in apt time will have that effect. *Cameron v. McDonald,*216 N. C., 712, 715, 6 S. E. (2d), 497.

We then have to consider the case upon the specific exceptions taken upon the trial.

The appeal is based upon supposed error in the trial court in failing to take certain action demanded by the defendants: (1) To instruct the Board of Drainage Commissioners as to its duties with respect to levying the special assessment; (2) to determine how many of the landowners had paid in cash the total amount of their assessments before the bonds were issued; (3) to make Cabarrus and Mecklenburg counties parties to the action, to determine the respective liabilities of each; (4) to make all bondholders parties to the action; (5) to declare the liabilities of various classification of lands in their present status with respect to the additional assessment to pay off the unpaid bonds and accrued interest; (6) to insert in the judgment a clause that the judgment should not be a prior lien to any other unpaid bonds issued by the Drainage District, but that it should share pro rata in the assessments of the district.

While the plaintiff did not make any motion to strike out the extraneous matter contained in defendants’ further answer, this did not prevent the court from confining the investigation to the field of inquiry limited by the complaint and the relevant portions of the answers and the issues thus raised. The issues between the plaintiff and the defendants were clear-cut and none of the matters excluded by the court had a relevant bearing thereupon or could in any way delay or defeat the plaintiff in its action.

*361None of the parties suggested by the defendants were necessary to a determination of the immediate rights between the parties to this action with respect to the relief demanded, however necessary the final adjustment of the financial affairs of the district may be. *Casualty Co. v. Comrs. of Saluda, supra.*

It must be admitted that very serious questions are presented to commissioners who have the financial affairs of a district in charge, and perhaps questions still more serious confront its creditors. In the present proceeding, however, the court is unable to recognize the propriety of any proceeding or device which might result in something in the nature of a declaratory judgment, in which advice might be given upon the complicated questions presented to the court. Many of them, no doubt, in a proceeding properly constituted, might be solved by court action. In the present case, however, there seems to be no legal reason why the plaintiff is not entitled to his relief without reference to them. *Casualty Co. v. Comrs. of*Saluda, *supra.*

*We*find no error in the trial, and the judgment is

Affirmed.