31 Minn. 536 | Minn. | 1884
The complaint alleges the death, intestate, of Phillips, the owner of certain lands; the appointment and qualification ■of the defendant as administrator of the estate; the possession by him of funds of the estate in excess of liabilities; the taking possession of the land by the defendant as administrator; license to the administrator, from the probate court, to sell the land; that the defendant represented to the plaintiff that the land was free from incumbrance, and agreed to sell it, as such administrator, and to give immediate possession, free from incumbrance, — relying upon which the plaintiff purchased the land and received a deed of conveyance, in proper form, from the administrator, which was confirmed by the probate court; that the land was not free from incumbrance, but was subject to a lease and right of possession for one year in favor of one ■Colwell, for which the lessee was to pay rent to the defendant as administrator, which facts were known to the defendant, who had himself leased the property to Colwell; that the lessee held possession of the land during the term of the lease, under it and by authority •of the defendant, the defendant and the estate receiving the rent therefor, in kind, out of the products of the land, the same being paid to the defendant for the benefit and use of the estate, and being of the value of $500, which sum is also alleged to have been the rental value of the land during that period. The complaint concludes with a demand for judgment against “the defendant as such administrator, and against defendant, ” for a sum named. At the commencement of the trial, the defendant moving for judgment upon the pleadings, the court had occasion to consider the nature of the action and to determine the character and sufficiency of the complaint; and, •evidently construing the action as being against the administrator as
In considering the case upon appeal we have to determine, first,. the nature of the action, against what party it is really prosecuted, and the cause of action upon which the plaintiff is to be regarded as relying. It is not easy from the complaint to determine these-matters, and the court below was evidently embarrassed in its action by the difficulties presented upon the face of the pleading. Either from inadvertence or intentionally, the complaint is so framed that it is impossible to learn from it whether the plaintiff intended by this action to charge the defendant McGill in his representative capacity as administrator, or personally. While the title of this action does not indicate that the defendant is sued as administrator, a recovery is prayed against him in that capacity, and the complaint contains allegations indicative of a purpose to charge him as administrator, and which should have no place in the pleading except upon that theory. On the other hand, the complaint sets forth other facts which are pertinent only as the action is to be deemed as prosecuted against McGill personally; and a personal judgment is also sought.. It seems probable that the complaint was drawn with a view of recovering against the defendant either in his representative capacity or personally, as the facts developed on trial should determine.
The plaintiff could not prosecute the action both against the defendant personally, and also against him in his representative capacity as administrator; and, the complaint being cast in this double-form, the most that the plaintiff could claim would be that he be allowed to elect as between the two inconsistent positions. Admitting that he had this right of election, he shows no injustice suffered by him in this case. The court, instead of directly putting the plaintiff to his election as to whether he would prosecute the action against, the defendant in the one capacity or in the other, indicated that it. construed the action as being against the administrator as such;, that is, against the estate. The complaint bears this construction,
Considering the action, then, as being against the administrator as such, it remains to decide what is the alleged cause of action upon which a recovery against the estate may be maintained, and whether such alleged cause of action was so supported by proof that it should have been submitted to the jury.
It is obvious that no cause of action exists for any representations or warranties which the administrator may have • made prior to the giving of the deed by which the title was transmitted. A sufficient, although perhaps not the only, reason upon which this proposition rests, is this: In the absence of fraud in such representations, they would be deemed to have been merged in the subsequent deed, which presumptively embodies the whole transaction relating to the sale. That embracing no covenants respecting incumbrances, none can be shown. Rawle on Covenants, (4th Ed.) 565, 566; Dart on Vendors, (5th Ed.) 777; Howes v. Barker, 3 John. 506; Houghtaling v. Lewis, 10 John. 297; Share v. Anderson, 7 Serg. & R. 43; Coleman v. Hart, 25 Ind. 256. No covenants are implied. Gen. St. 1878, c. 40, § 6. If the administrator was guilty of fraudulent representations or conduct, he alone is answerable, and not the estate. The estate is not responsible for the fact that the plaintiff was unable, by reason of the occupancy of Colwell, to get possession of the land.
The only remaining ground upon which the estate can be deemed to have been chargeable is that adopted by the court below; that is, for money (or property) had and received as rent of the land, and which the plaintiff, as the grantee of the estate and the owner of the land, is entitled to receive. This leads to the inquiry whether, ad
Order affirmed.