This action was originally brought against the defendant in his individual capacity. After a demurrer to the complaint had been sustained in part, a substitute complaint was filed. This having been demurred to with the same result as before, the defendant in his capacity as executor was cited in as a party defendant, and another complaint substituted. Another demurrer followed, which was overruled. After the pleadings had passed through sundry other vicissitudes unimportant to notice, an answer was filed and the case went to trial to the jury. After the evidence was closed the case was taken from the jury and submitted to the court for decision.
The last substituted complaint, in a single count, was apparently framed for the purpose of furnishing a basis for a judgment either for the amount due upon the note, or for the damages arising from a breach of the covenant of warranty contained in the mortgage deed, as the proof might warrant. No exception was taken to its form, and we therefore need take none. *Page 144
The court, from the evidence, found that no exhibition of a claim for a breach of warranty had been seasonably made, and therefore adjudged that the plaintiff was not entitled to recover for such breach. It was, however, found that within the time limited for the presentation of claims against the estate, the plaintiff exhibited its claim under the note to the defendant executor. Judgment was accordingly rendered against him in that capacity for the amount of said note and interest.
It is difficult to discover from the record and the transcript of the proceedings which is before us, in connection with the appeal, what right the court had to render a judgment such as was rendered. In its demurrer filed to the second special defense in the answer, the plaintiff expressly declared that the cause of action sued upon was one based upon the eviction, and none other. This statement was more than once reiterated during the trial. When the case was taken from the jury and submitted to the court for decision, it was conceded by all concerned that the plaintiff could have judgment only in the event that there had been a proper and seasonable presentation of the claim for the breach of warranty, and the sole question submitted was, as we read the record, upon this point. Upon this question the court ruled adversely to the plaintiff, but proceeded to find what counsel had disclaimed his ability to prove, to wit, a due presentation of a claim upon the note, and to render a judgment therefor. As the appellant, however, has, in his appeal, failed to clearly take advantage of this aspect of the case, we pass to a consideration of other questions involved.
The subordinate facts from which the court's conclusion that there had been a due presentation of the claim under the note was drawn, are stated in the finding as follows: "It did not appear from the evidence precisely at what time nor in what manner the existence of the note secured by the mortgage given by said Cassidy to the plaintiff bank was made known to the defendant, or when or in what manner said note was presented to him as executor as a claim against the estate. I find that soon after administration of the estate *Page 145 was granted to the defendant the existence of the note as a claim against the estate was made known to him by said plaintiff bank, and the defendant began in March, 1891, to pay the interest on said note, and continued to pay the same until March, 1895; and as a conclusion therefrom I find the allegation in paragraph 18 of the substituted complaint to be true."
An examination of this statement, taken in connection with the facts disclosed by the record, shows that the fact of exhibition within the meaning and intent of the law was found upon the following subordinate facts alone: (1) knowledge on the part of the executor of the existence of the claim; (2) the derivation of such knowledge from the plaintiff; and (3) payment of interest on the note for the four years named. With respect to the first two of these subordinate facts, it will be noticed that there is no finding of any act done or word spoken by the plaintiff, or by any one in its behalf, which was either actuated by a purpose to put this note in a position to claim payment out of the estate, or which evidenced, or was intended to evidence, any such purpose. The finding is barren of fact or incident transpiring prior to the expiration of the time limited for the presentation of claims indicative of an intention on the plaintiff's part to establish for its claim a status which should entitle it to share in the division of the assets of the estate. All that appears is that at some time unknown and in some way unknown, either with or without purpose, knowledge of the existence of the claim passed from the plaintiff to the executor. This we have heretofore held is not enough. Brown Bros. v. Brown,56 Conn. 249; Pike v. Thorp, 44 id. 450.
So far as the interest payments are concerned, neither these nor anything in connection with or attending them could by any possibility amount to a seasonable exhibition of a claim based upon the mortgage note, or the legal equivalent of such exhibition, since the first payment was not made until seven months after the time limited for the presentation of claims had expired, and the plaintiff's claim became barred. Conduct which began in March, 1891, was too late to be effective *Page 146 in accomplishing a presentation prior to August 6th, 1890.
As evidence of a prior presentation, these interest payments — made as they were by one who was the equity owner as well as the executor, and made apparently for the most part, if not wholly, after the settlement of the estate — could have no significance, since they were more in consonance with an intention on the part of the parties that the mortgage loan was to remain a continuing one than one that it was to be paid out of the estate in settlement.
It follows that the court, in finding the essential fact of a seasonable exhibition by the plaintiff to the defendant executor of its claim under the note, must have either misconceived the legal requirements of such an exhibition, or found the fact without evidence.
There is error and the judgment is reversed.
In this opinion the other judges concurred.