Noon v. Finnegan

• Citation: 19 N.W. 391,32 Minn. 81
• Parties: Margaret Noon, Administratrix, v. Andrew J. Finnegan
• Decision Date: 15 May 1884
• Court: Supreme Court of Minnesota (US)

19 N.W. 391

32 Minn. 81

Margaret Noon, Administratrix, v. Andrew J. Finnegan

Supreme Court of Minnesota

May 15, 1884

Appeal by defendant from a judgment of the district court for Hennepin county, Young, J., presiding. The case is stated in the opinion. A former appeal is reported in 29 Minn. 418.

Judgment affirmed.

Secombe Sutherland & Herring, for appellant, cited Noon v Finnegan, 29 Minn. 418, and argued that the action cannot be maintained, because (1) the defendant, as grantee of the heirs, owned the real estate and was entitled to possession, subject only to the liability of a sale, under order of the probate court, for payment of debts, and his acts were not a trespass against any one; (2) trees cut and removed from the land are not rents and profits within the meaning of Gen. St. 1878, c. 52, § 6, nor is the money received on a sale of them. Shepard v. Pettit, 30 Minn. 119; (3) rents of real estate after the death of the ancestor belong to the heir, and not to the personal representative. McCoy v. Scott, 2 Rawle, 222; Adams v. Adams, 4 Watts, 160; (4) it does not appear in any way in the case that the real estate is not now sufficient to pay the debts. Paine v. First Div., etc., R Co., 14 Minn. 49, (65.)

In no event should plaintiff recover from defendant more than four-sevenths of the amount of the debts, or, at the utmost, the amount of the debts.

Beebe & Russman, for respondent.

OPINION

Mitchell, J. ^[1]

This action was brought by plaintiff, as administratrix of the estate of John Noon, to recover for injuries to the real estate of her intestate committed subsequent to his decease. The injuries complained of consisted of cutting and carrying away standing timber. Since the case was here on a former appeal, (29 Minn. 418,) the complaint has been amended by alleging that the heirs of Noon had not entered into possession of the premises, but that the plaintiff, as such administratrix, had asserted her right thereto, and had entered and taken possession.

The court below found as conclusions of fact, among others, that the estate was not fully administered; that there were debts against it to the amount of about $ 200; that Noon died intestate, leaving surviving him his widow, the plaintiff, and seven children, three of whom are still minors; and that defendant, by mesne conveyances from the heirs who have attained their majority, has acquired the title to the undivided four-sevenths of the premises; that the premises were vacant and unoccupied; that the value of the timber cut and carried away by the defendant was $ 414. On these findings judgment was ordered against defendant for that sum.

The sole question presented in this case on the former appeal was whether a personal representative who had never asserted his right under the statute to the possession of the real estate could maintain an action for injuries committed thereon post mortem decedentis. The majority of the court by...