Mead's Appeal from Probate

Granger, J.

The first question presented by the record is, did the commissioners properly reject the appellant’s claim for the amount due on the lost note ?

It appears from the finding of the Superior Court that the appellant, among other claims, presented to the commissioners a claim for $10,000 for money loaned to, and paid out for, Theodore H. Mead in his life time, at his request at various times. The appellees claimed that the lost note was not embraced in this last claim, and objected to the evidence in relation to it. The commissioners rejected the evidence and disallowed the claim. We assume this to be so, as no other reason appears for the rejection of the claim. It does not appear that any suggestion even was made by the appellees that the claim was not an honest one, and they only insist before us that it was not properly presented, and,that therefore no evidence was admissible to prove it.

We think that this objection is entirely too technical, and ought not to prevail to defeat a just and equitable demand against the estate of the decedent. No more stringent rule as to certainty and particularity should be applied to a claim *428 presented to commissioners on an estate represented insolvent, than -would be applied to the same claim if made the subject of an action of general assumpsit brought by the appellant against the deceased in his life time. In such an action the plaintiff might have declared that the defendant, on any day preceding the date of the writ, was indebted to him in the sum of $10,000 for so much money had and received, and for so much money lent and advanced, and so on through all the common counts; and can it be said that under such a declaration he could not be permitted to prove that the defendant justly owed him $1,000 ? Suppose under such a declaration the plaintiff had filed si bill of particulars precisely like the claim presented to the commissioners, and the defendant made no objection to it on the ground of its generality, or on any other ground, until the time of trial, and then when the plaintiff offered to prove that the defendant was indebted to him at a certain time in the sum of $1,000, should object to the evidence on the ground that this claim was not embraced in the declaration or bill of particulars; would such an objection be sustained? We think it would not. But if it were sustained, clearly the plaintiff would have a right to amend his bill of particulars, and make it conform more strictly and definitely to his real and just demand. It would not do to say that, because the plaintiff had demanded in his declaration and bill of particulars $10,000, when only $1,000 was due, he should not be eutitled to prove or recover anything. This would be inflicting punishment upon a plaintiff for demanding more than was his exact due. Again, if the appellant had brought suit against the deceased, declaring upon the note in question as a lost note, and added the common counts, claiming $10,000 due, and had failed on the trial to prove the lost note, as described in his declaration, and was unable to identify the note sufficiently to enable him to recover upon the count specially describing it, the note would still be evidence under the common counts, of money lent or paid, or of account stated. White v. Brown, 19 Conn., 584 . But technical rules applicable to pleadings in cases in the courts of law are not to be insisted on before commission *429 ers on insolvent estates. No declaration or other pleadings are usual or necessary. The presentation of claims is not a technical proceeding. “To require the technicalities of pleading before such a tribunal would serve only to defeat their object, and to produce embarrassment and confusion, delay and expense.” Mills v. Wildman, 18 Conn., 131 . A clear intelligent statement of the claim, one that commissionsioners can understand and act upon intelligently, is enough. They are clothed with legal and equitable jurisdiction, and the law prescribes no special form for presenting claims to them of either character, (Commissioners for Foreign Missions’ Appeal from Probate, 27 Conn., 353 ,) and the real question before them is, whether the claim presented is a just claim against the estate. The statement of the appellant’s claim before the commissioners was clear and intelligent, and one which the commissioners ought to have understood, and one upon which they could have acted intelligently. It is simply a claim for “money loaned to, and paid out for, said Theodore Mead, in his life time, at his request at various times, with interest thereon, $10,000.” Under this statement of the claim it was clearly the duty of the commissioners to inquire whether anything was justly due the appellant, and in such inquiry it was their duty to hear any evidence which tended to show what sum was so due. The facts which he offered to prove not only tended to show, but did conclusively show, that the amount due him was, including interest to the last day limited for presenting claims, $1,075.17. The appellant offered evidence to prove, and if the evidence was admissible did prove, before the Superior Court, and the court finds, that on or about the 3d of July, 1875, the appellant loaned to Theodore Mead the sum of one thousand dollars, and took his note therefor; that afterwards the appellant’s house was entered by burglars, and the note stolen, and that it was never recovered; and at the time he presented the claim to the commissioners he was not able to recollect the date of the loan nor give a description of the note. We think the evidence was clearly admissible for the plain and simple reason that it pi’oved the real issue between the parties; an issue not *430 formed by any formal written pleadings, but resulting from the nature of the claim, and the character of the proceedings before commissioners on insolvent estates, and which was, whether anything was justly due the appellant, and if so how much. The appellant’s claim to be allowed for the amount of the lost note and interest is founded in justice and equity, and we know of* no rule of law that should preclude him from proving it and having it allowed. To say that this claim is not embraced in the last item of the claims presented is equivalent to saying that the greater does not include the less. We advise the Superior Court to allow the claim for the amount found due on the lost note.

The second question presented upon the record is, in substance, whether the transactions between the appellant and Theodore H. Mead, relating to the loans subsequent to the giving of the deed, were fraudulent as against creditors. Was the deed of Jabez Mead to the appellant void as against subsequent creditors of Theodore Mead? We do not understand that the appellees claim that the deed from Theodore Mead to Jabez Mead was void as against the creditors of Theodore, but they admit that this deed, in connection with the agreement between Theodore and J abez Mead of August 2d, 1873, was good and valid as a mortgage to the extent of securing Jabez for his endorsement of the $1,000 note described in the agreement. This deed, though absolute on its face, was clearly a mortgage, and Jabez, upon being discharged from his liability as endorser by the payment of the note by Theodore, would have been bound to reconvey the land to Theodore. The legal title to the land vested in Jabez, and remained in him until he conveyed the premises to Thomas A. Mead, the appellant. This conveyance was made by Jabez with Theodore’s consent, not for the purpose of defrauding the creditors of Theodore, but for the purpose of securing the appellant for the debt which Theodore then owed him, in addition to the note which Jabez had endorsed and which the appellant paid before the last deed was given. Was the deed of Jabez to Thomas A. fraudulent against the then creditors of Theodore? We think it was not. The *431 Superior Court finds that all the transactions between Thomas A. Mead, the appellant, Theodore Mead and Jabez Mead, were in good faith between the parties, and without intent to defraud other creditors of Theodore, unless such intent is to be inferred from the facts found. There was no actual fraud in this transaction, and we think none should be inferred to affect the rights of the appellant, for although the case finds that Theodore at the time of the execution of the deed and up to his death was unable to pay his debts, it does not appear that the appellant had then or ever had any knowledge of this fact. The deed was duly recorded, and furnished evidence to all the world that the land had been conveyed to the appellant for the expressed consideration of $2,000. The land was worth $5,000. This was sufficient to put creditors on inquiry, and if they had any suspicion as to the good faith of the transaction, they might have attached the interest of Theodore in the property, or instituted insolvency proceedings under the statute, and in that mode attacked the validity of the deed. So far as the conveyance to the appellant may be regarded, especially as to the later advances made upon the security of it, as fraudulent under the insolvent law as giving a preference to the appellant over other creditors, it could have been attacked by the other creditors through a trustee in insolvency—but in no other mode. If the time within which insolvent proceedings could have been instituted had not passed long before the death of Theodore Mead, his death would have barred the proceeding; and it being found that the conveyance was not fraudulent in fact, the administrator on his estate could not set it aside for the benefit of his creditors. The creditors stand now precisely in the same position that they did at the time of the death of Theodore, that is, as general creditors without liens acquired in the life time of the intestate. Judge Waite, ip. giving the opinion of the court in Haskell v. Bissell, 11 Conn., 176 , says:—“A creditor, merely as such, has no specific lien upon his debtor’s property. He may indeed levy an attachment or execution upon it in his debtor’s life time, and it may afterwards be sold for the payment of his debts. But the administrator or executor has no *432 power over property which the person whom he represents did not own at the time of his decease.” That Theodore did not own this land at the time of his death in the full and literal sense of the term is beyond question. He owned an equity of redemption in it, and practically was the owner, and upon payment of the debt for which the land was pledged was entitled to a reconveyance. But before he could claim a reconveyance, he was bound to pay, not only the original debt, but all subsequent sums which he had borrowed of the appellant, and for which he agreed that the land should be held as security; and upon a bill to redeem he would have been required to do this without any special agreement to that effect. “ It is a maxim in chancery that he who wants equity must first do equity himself. If therefore one man mortgages lands to another and afterwards takes up more money, though there is no special agreement that this shall be charged upon the lands, yet he will not be permitted to redeem without paying both debts.” Scripture v. Johnson, 3 Conn., 211 ; 2 Swift Dig., 186. This is a proceeding in equity as well as at law; and we think the rules of equity require that the case should be disposed of upon the same principles that it would be governed by if Theodore Mead in his life time had brought a'bill to .redeem. The administrator has no greater rights in the property than the deceased had at the time of his death, cither as it respects heirs or general creditors. Whatever just and equitable right Theodore Mead had in this land belongs to his representatives and creditors. That and that only the administrator is bound to see properly appropi’iated; his rights or duties extend no further. The agreement between the parties is tainted with no fraud; and it is just and right that it should be enforced.

The Superior Court is advised that Jabez Mead’s deed is security for all the advances made upon it by the appellant, according to the terms of the agreement between him and Theodore Mead; that is, that the court should allow as secured claims the amount due the appellant from Theodore Mead at the time the deed was given, Jabez Mead’s note and interest, and the amount of loans made after the deed was given.

*433 The ice house claims, although valid claims against the estate, we think are not to be treated as secured claims. No liens were actually filed and perfected. The* several claimants notified the appellant soon after Theodore Mead’s death that they should file liens unless he paid their several claims. The appellant, believing they would file liens, promised to pay and did subsequently pay those claims.

Mechanics’ liens are entirely creatures of the statute, and unless perfected according to its provisions they are inoperative. At the time the appellant paid the claims no legal liens had been placed upon the property, and none were afterwards so placed. These claims are allowable against the estate, but not as secured claims, and the Superior Court is so advised.

In this opinion the other judges concurred; except Park, C. J., and Loomis, J., who dissented with regard to the allowance of the $1,000 note under the form in which the claim was presented.