| Minn. | Dec 16, 1892
A previous action between these parties, upon substantially the same cause of action, came here on appeal, and is decided in 47 Minn. 80" court="Minn." date_filed="1891-08-03" href="https://app.midpage.ai/document/winston-v-young-7967091?utm_source=webapp" opinion_id="7967091">47 Minn. 80, (49 N.W. 521" court="Minn." date_filed="1891-08-07" href="https://app.midpage.ai/document/hurlbert-v-new-ulm-basket-works-7967092?utm_source=webapp" opinion_id="7967092">49 N. W. Rep. 521.) On that appeal the only question presented and passed on was whether a representation by defendant, an executor of the will of Lovejoy, that the estate was solvent and would have money enough to repay what plaintiff should pay on its account, was, for the purpose of an action for deceit, a representation of fact, or only the expression of an opinion, and we held it the former. The question of the materiality of the representation of fact, although it might have been made in that case, was not made, and consequently was not passed upon.
The evidence in this ease was to the effect that defendant said to plaintiff that he was executor of the estate, and knew it would have plenty of money to pay all the debts, and that it would be all right, and if she would pay the money he would repay it to her, and that, if she paid the money, as soon as there was any money in the estate, it would be sufficient to pay all the debts and hers. These conversations contain representations of fact, to wit, that the estate was able to pay all its debts. So far as they contained any assurance that if she paid the money it could be repaid to her as a debt or claim against the estate, it was a representation of law, upon which an action for deceit could not be predicated, for plaintiff is presumed to have known the law as well as defendant. That defendant was
Respondent contends, and the court below seems to have held, that the representation of solvency of the estate, and of its ability to.pay all its debts, was an immaterial representation, for the reason. that the payment of the money by her upon the mortgage which rested on real estate, a part of the estate, would give her no claim or debt that could be allowed and paid as such out of the assets of the estate applicable to the payment of debts against it, and therefore it could be of no consequence to her, in paying her money, that such assets were or were not sufficient to pay the debts, and she could not be legally prejudiced by the falsity of the representations; that her rights against the estate and her remedy, if any, would be the same, whether it were solvent or insolvent. And this is undoubtedly so. Deceit without damage will not sustain an action. Debts to be allowed and paid out of the estate of a deceased person must be such as were incurred, or such as arise on obligations entered into, by him. Any claim arising from payment of money, at the request of the executor, to relieve any part of the estate from an incumbrance upon it, is not such a debt. If there be any remedy against the estate to the party for the money so paid, — and we do not say whether there is or not,— it must be worked out through the executor as for an expense of administration. The representations proved do not relate in any way to the sufficiency of the estate to pay all expenses of administration, and there was no evidence that it was insufficient for that purpose.
That the plaintiff, upon paying part of the mortgage, was or was not entitled to be subrogated pro tanto to the security held by the mortgagee, is immaterial in this action, as it would not affect her right to proceed against the general estate, as a creditor, for the money she so paid.
Order affirmed.
(Opinion published 53 N. W. Rep. 1015.)