In 1909 Norcross was owing McFarland & Son, grain dealers in Hardwick, Vt., about $1,000, and one Robie about $700, and at the request of the attorney of these parties Norcross gave to each his promissory note for the sum due. These notes finally came into the possession and ownership of the plaintiff, in accordance with the understanding of the parties at the time they were given and were paid from the proceeds received from Norcross' collateral, leaving debts against Norcross which were outstanding at the time the McFarland and Robie notes were given of about $1,100 still unpaid.

After the plaintiff had made out a prima facie case and had rested, the defendant of fered to show as hereinafter quoted from defendant's brief.

Subject to defendant's exception, the offered evidence was excluded, and, as no further evidence in defense was offered by the defendant, the court directed a verdict for the plaintiff. As the case then stood, no question is or can be raised but that the plaintiff was entitled to a verdict for the sum due on the note. The only question, therefore, is whether the evidence offered would constitute a defense to the note in suit.

[1, 2] Assuming, for the purpose of considering the question, that the facts are as the defendant offered to prove, such facts would constitute no defense, unless the note in suit was a debt which Norcross owed the plaintiff and was bound to pay as a debt. But the note in suit was delivered to the plaintiff as collateral, and has always been held as such, and not otherwise. Its character in that respect has never been changed. It never constituted or represented a debt due from any of the makers to the plaintiff. It was a pledge, and the pledgee took but a special property therein; the general property remaining in the pledgor. It is said in Wood v. Dudley, 8 Vt. 430, 435:

"But in case of a pledge the general property does not pass, but remains in the pawnor, the pawnee having only a special property, or lien; and in this case, although the pledge may not be redeemed by the time limited, yet it retains the character of a pledge still."

And, since the transaction as to this note constituted a pledge, the plaintiff's rights relative thereto were those of a pledgee, incident thereto. Samson v. Rouse, 72 Vt. 422, 48 Atl. 666.

Under the agreement connected with the making of this pledge, and that of other property by way of notes, the plaintiff had a right to avail itself of the benefit to be de

cures.

Did the agreement offered by the defendant to be shown as made by McFarland, representing the plaintiff bank, with Norcross at the time the latter gave the McFarland & Son note and the Robie note, make any change in this respect? It seems to have been understood that these two notes should be secured by the same collateral that was already held by the plaintiff, including the note in suit. But, according to the offered evidence (quoting from the defendant's brief, where it is stated certainly as strongly in favor of defendant as the evidence will warrant):

"And it was then and there agreed, at the time said Norcross executed said McFarland & Son note and delivered the same to H. M. McFarland as aforesaid, that none of the proceeds of the said collateral should be used by the plaintiff in payment of the said note of Norcross to McFarland & Son until all other indebtedness then held by the plaintiff against said Norcross had been fully paid, *** and delivered said Robie note to said Henry and that at the time said Norcross executed McFarland it was agreed between them, as in the case of the McFarland & Son note, that none of the proceeds of the collateral then held by the plaintiff should be applied in the payment of said Robie note until all other indebtedness of said Norcross to the plaintiff had been paid."

Defendant's counsel then proceed in their brief to argue or state that a part of the indebtedness of Norcross to the plaintiff was the note in suit. Herein lies the fallacy of their position. We have already undertaken to show that the note in suit never was a debt, nor did it ever represent a debt from Norcross to the plaintiff. On authority, as we have quoted from 8 Vt. at page 435, the pledge of this note "retains the character of a pledge still." Let us follow the idea advanced by defendant's counsel in this respect and see to what it leads. Nothing has ever been received by the plaintiff on this piece of collateral. So the argument goes to the extent of saying that the avails realized from other collateral held for the same purpose must in part go to pay the collateral note in suit which is not a debt, before the collateral held by plaintiff can be applied to the payment of the McFarland & Son note and the Robie note. It should be borne in mind that the agreement was not that this note in suit should not be held as collateral for the two notes last mentioned, and so in law discharged as collateral on the payment of the other indebtedness from Norcross to the plaintiff. Such an agreement might be reasonable and perhaps not uncommon; but an agreement that the avails of one piece of

(93 Vt. 476)

near an absurdity as to require undoubted proof of such an understanding. It certainly is not within the evidence offered by the defendant and excluded by the court.

Let us test the soundness of the defendant's position in another way. The plaintiff, as pledgee, is entitled to the benefit of the collateral held by it, including the note in suit, until the indebtedness for which it was pledged is fully satisfied, or the lien otherwise discharged, which is not claimed in this case. But when the principal indebtedness has been paid, or tender made, the collateral still unavailed of is discharged in law of the incumbrance, and the pledgor is entitled to the return of the property pledged, including the note in suit. Robbins v. Packard, 31 Vt. 570, 76 Am. Dec. 134; 21 R. C. L. at page 679, § 41 and cases there cited in note 16. Yet, if it be a debt due to the plaintiff, it must be paid in addition to the actual indebtedness for which the collateral is held as security, and the payment of such actual indebtedness in full does not operate to discharge this piece of collateral, though still held by the pledgee unavailed of, because, forsooth, it represents a debt to the pledgee other than the actual indebtedness before specified. If it constitutes a debt, when was it contracted, and what was the consideration? A careful study of the record, including the transcript, shows that it has always been held by the plaintiff only as collateral, and that neither party has ever claimed otherwise. This brings us to the same result as does the other course of reasoning, namely, that in order to sustain defendant's claim, we must say that the avails of one piece of collateral must go in payment, not in discharge, of another piece of collateral held in exactly the same way and for the same precise purpose, thus showing that the argument, or claim, leads to an absurd conclusion. There was no error in the exclusion of the offered evidence; for with it admitted there would be no question for the jury, there being no other evidence to meet the case made by the plaintiff before it rested.

[3] Neither was there any error in the action of the court below in directing a verdict for the plaintiff; for there was and is no question raised but that it made out a case which entitled it to a verdict before it rested, and no evidence afterwards appeared in the case to change that result.

8, 1919.)

233

Allegation by plaintiff suing a decedent's estate in chancery that "it was understood" that his original claim presented to the commissioners in the name of a company formed by him was to be considered as his personal claim held missioners to that effect so as to make an alinsufficient to assert an agreement with the comlegation of due presentation of claim within the time required under the circumstances by G. L. 3295.

3. EXECUTORS AND ADMINISTRATORS-232—

INSUFFICIENT EXCUSE FOR FAILURE TO PRESENT CLAIM.

The understanding of claimant against a decedent's estate from the judge of probate or from a commissioner that the original claim filed in the name of a company formed by claimant would be considered as a personal claim held not to avail claimant as an excuse for neglecting to present his claim within the three months limited by G. L. 3295.

Appeal from Chancery Court, Chittenden County; Fred M. Butler, Chancellor.

Suit by Max L. Powell against the estate of E. F. Moore. From decree dismissing the bill, plaintiff appeals. Decree affirmed, and cause remanded.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Max L. Powell, of Burlington, pro se. Sherman R. Moulton, of Burlington (Alfred L. Sherman, of Burlington, on reargu ment), for appellee.

POWERS, J. This is a proceeding in chancery wherein the plaintiff seeks the aid of the court in obtaining a hearing before the commissioners of the estate of E. F. Moore, deceased, on a claim which accrued

1 When this case was originally argued, it was ment from the bench, the case, being ordered for reargument, was assigned to Mr. Justice Powers.

in the latter's lifetime. The bill was demurred to, and the case comes here on the plaintiff's appeal from a decree sustaining the demurrer and dismissing the bill. So the only questions we are concerned with relate to the sufficiency of the allegations.

It is shown by these that the plaintiff entered into a contract with the decedent for the construction by the latter of the foundation of the building known as Hotel Vermont. The Hotel Vermont Company, a corporation, had not then been formed; so the contract referred to was made in the plaintiff's own name. At the time Moore died there was an unsettled bill against him growing out of this contract, and a claim therefor in the name of the Hotel Vermont Company was duly presented to the commissioners of his estate. This claim was disallowed, and, an appeal having been taken, final judgment against the claimant was rendered in the county court. In the meantime, on a petition brought by the plaintiff, the probate court renewed the commission in order to give the plaintiff an opportunity to present the same claim against the estate in his own name. "And," says the pleader, "it was understood that the original claim that was filed with said commissioners was to be considered as the claim" of the plaintiff.

A month later one of the commissioners wrote a letter to the plaintiff naming several days on which the commissioners would hear his claim, and asking him to select a date. At this time counsel for the estate was temporarily out of the state, and, this fact being ascertained and communicated to the commissioner, it was left that upon the return of the attorney a later date would be fixed for the hearing. Nothing further was done (of any consequence here) either by the plaintiff or the commissioners until August 24, 1916. On that date the commissioners filed in the probate court a report wherein it was asserted that notice in writing was given the plaintiff May 15, 1912, and that no claim was presented for allowance. No notice of the filing of this report was given to the plaintiff, and he did not learn of it until September 20, 1916. The plaintiff thereupon filed in the county court a petition asking leave to enter an appeal from the decision of the commissioners, which was denied on the ground that there could be no appeal from a disallowance by the commissioners, because the plaintiff had presented no claim to them. Then this bill was brought asking the court of chancery to order that the plaintiff be given an opportunity to be heard before the commissioners and for general relief.

[1] It is apparent, then, that the plain

tiff did not present his claim to the commissioners within the life of the original commission; and the only authority which the probate court could exercise under his petition for a renewal of the commission is to be found in G. L. 3295. The further time that could be given the commissioners within which to receive the plaintiff's claim is thérein expressly limited to three months. This limitation being statutory, neither the probate court nor the court of chancery has the power to extend the time. So, unless this plaintiff had, within the three months, presented his claim to the commissioners or done something equivalent to that, his bill is without equity and the demurrer well taken.

[2, 3] That he did not actually and formally present his claim is evident. But he argues that both he and the commissioners understood that the Hotel Vermont Company claim was to stand as his claim. This, however, is not the allegation, and it must be remembered that we are not dealing with the facts, but with the allegations only. Assuming for argumentative purposes merely that it would be a sufficient presentation of the plaintiff's claim if he and the commissioners agreed together that the claim previously filed in the name of the Hotel Vermont Company should stand as his claim, and assuming, too, that G. L. 3296, applies thereto, so that the commissioners had an indefinite time after the expiration of the three months in which to consider the claim, the bill is insufficient. The nearest that the pleader comes to asserting an agreement or understanding on the part of the commissioners is the allegation above quoted wherein it is said that "it was understood" that the original claim was to be considered the plaintiff's claim. But this is not enough; for neither from the allegation itself nor from the context does it appear that the pleader was referring to an understanding on the part of the Commissioners. It is not, then, the case of an insufficient allegation, but the case of want of allegation. It is reiterated in the bill that the plaintiff understood that the original claim was to be treated as his, but this alone would not amount to a presentation of his claim. Nor does his understanding from the judge of probate or from Commissioner Taft avail him as an excuse for neglecting to present his claim within the time limited in the statute. He was bound to know the terms of the statute and that they could not be varied or enlarged.

The bill being fatally defective in the respect specified, it is unnecessary to discuss its other features.

Decree affirmed, and cause remanded.

7. APPEAL AND ERROR 837(10)-DEEDS NOT INTRODUCED IN EVIDENCE MAY NOT BE CONSIDERED ON APPEAL.

In construing a deed as to boundaries, where it refers to a right of way without showing its location or width, deeds not in evidence, which are referred to by deeds that are in evidence, cannot be considered, and a reference in the findings to deeds in chain of title referred to as a part of the findings includes only those in evidence, and does not bring into the Supreme Court, or permit the parties to bring in, deeds not offered in the court below to locate the right of way.

8. APPEAL AND ERROR 673(2) — CONTENTIONS AS TO OWNERSHIP OF BOUNDARY LAND NOT SHOWN BY RECORD.

In a proceeding to locate and fix the boundary of lands described by metes and bounds, a contention that boundary land described as belonging to P. was the same land as now owned by C. cannot be sustained, where the record fails to show such fact, or to show who P. was, or what land he owned, if any. 9. APPEAL AND ERROR 173(9) ESTOPPEL 110-QUESTION OF ESTOPPEL NOT CONSIDERED WHERE NOT RAISED BY PLEADING OR EVIDENCE BELOW.

where possible, and where it cannot, it may be To be conclusive, estoppel must be pleaded given in evidence, but will not be considered upon appeal, unless raised in some form in the trial court.

An exception that the chancellor neglected to report testimony requested cannot be reviewed, where the record fails to show what the request was, or that there was a request, so it must be assumed that the findings are supported by the evidence.

4. JUDGMENT 251(1) - DECREE MUST CON

FORM TO PLEADINGS AND FINDINGS.

A decree must conform to the pleadings and findings, and where the question of easement was not in the pleadings or supported by facts found, the part of the decree relating thereto was not warranted.

5. DEEDS 93-INTENT MUST CONTROL CONSTRUCTION.

The intention of the parties must govern the construction if ascertainable from the language of the deed.

6. DEEDS 111 - PARTICULAR DESCRIPTION CONTROLLING GENERAL DESCRIPTION.

Where a deed contained a particular description, fixing a line by the foundation wall of a building which had stood for many years previous, and a later general description, "being all and the same land and premises conveyed to the deceased by" the former, particular description must control.

1 When this case was originally argued it was assigned to Mr. Justice Haselton. Upon his retirement from the bench, the case, being ordered for reargument, was assigned to Mr. Justice Slack.

BURDEN OF SHOWING TITLE.

In a proceeding to enjoin defendant from erecting a building on land that plaintiff claimed to own and to remove cloud, plaintiff had the burden of showing its title to the land; and, having failed to do so, its bill was properly dismissed.

11. APPEAL AND ERROR 1146-AUTHORITY TO MODIFY DECREE TO CONFORM TO PLEADINGS AND FINDINGS.

That a decree in equity is too broad does not necessitate a reversal because the Supreme Court has authority, under G. L. 1564, to modify the decree to conform to the pleadings and findings.

Exceptions from Chancery Court, Windham County; Fred M. Butler, Chancellor.

Bill for injunction by the Cutler Company against Herbert G. Barber: Decree for defendant, dismissing plaintiff's bill, and plaintiff brings exceptions. Decree altered and affirmed.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. O. B. Hughes, A. F. Schwenk, and W. R. Daley, all of Brattleboro, for plaintiff. Robert C. Bacon and Frank E. Barber, both of Brattleboro, for defendant.

SLACK, J. The plaintiff seeks to enjoin the defendant from erecting a building on