St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1895-08-07


holds that the respective mortgages
were tenants in common, and that as
the defendant received less than he
was entitled to of the grain not mis-
appropriated, plaintiff had no cause of
action. The syllabus in the case fol-
lows:
John McRae, respondent, VS.. P. H.
O'Hara, appellant AS between mort
cages upon separate undivided shares
of a growing crop the date OF the
execution, delivery and filing OF the
same is immaterial.. The mortgages
have the rights of tenants in common.
If a portion of the crop is destroyed
by the elements, or is appropriated by
a wrong doer before a division, the
balance is to be divided between the
mortgages as if none had been lost,
or Incorporated, and according to
the interests as fixed in the mortgages.
Judgment reversed. COLLINS j.
In the case of George w. Byrnes ct
al, appellants, VS.. Frances Sexton ct
al, respondents section 5447 of the gen.
eral statutes of 1894 is construed. The
language of the statute passed upon is
that Notwithstanding the death of a
party after Judgment, execution there
on against his property may be issued
and executed in the same manner and
with the same effect as if he was still
living, except that such execution can
not be issued within a year after his
death" The action in which this ap-
peal was taken is in partition, the
subject of controversy being an UNI
divided one-tenth of a tract of land in
Hennepin county. The defendants til
tie to this tenth depended wholly on
the validity of an execution sale made
upon a judgment in which one Byrnes,
deceased, was debtor. The Judgment
was rendered in Rice county, and
docketed in Hennepin county in 1883,
Byrnes having died intestate in 1878,
leaving no personal property but own
ing the land in question Execution
was issued on the judgment in 1885,
and a levy made on the land under
which it was sold by the sheriff of
Hennepin county. From this sale
there had been no redemption, and the
interest of the purchase has passed
to the defendants. I'VE are of opin-
1on," says Justice Collins, when con-
sidered in connection with other stat
uteS, to which we have referred. that
section SAT must be construed as lin
ting the right to have execution is
sued to enforce the collection of a
money judgment after the death of the
judgment debtor and construed as
simply and only authorizing such is
suance in cases where, and such ex-
ecutions can only be levied on real
property on which a lien has been ac-
quired prior to the decease."
The appeal was taken by plaintiff
from the order of the court below re-
fusing a new trial. This order is re-
versed by the present decision. In
this decision Justice Canty took no
part. Following is the syllabus:
George w. Byrnes ct al, appellants,
vs.. FRANCES Sexton, John Sexton Ell
al, respondents. 1. G. S. 1894, Sec.
5l47, construed. Held, that the right
gwen 10 Judgment creditors to have
executions issued to enforce the collec-
ton of money judgments after th.
decease of judgment debtors is limited
TO cases where, and such executions
can only be levied upon real property
on which a lien has been ACQUIRED
prior to the death of the debtor.
T. A judgment creditor who has ac-
CURED no lien prior to the death OF
the debtor must proceed to establish
ana collect his claim as a general
creditor and in the due course of ad-
ministration. Order reversed.
COLLINS, J.
In the case of Peter Hedin. respon-
dent, VS.. Minneapolis Medical and Sur
gical Institute ct al. appellants, the ap-
peal was taken from the order of the
lower court denying defendants mo-
ton for new trial The lower court
is sustained. The action was brought
by Hedin against the institute to re-
cover damages for alleged deceit in
certain representations made to him
by defendants, as to the durable nature
of certain injuries from which he was
suffering. Hedin took treatment at
the institute and paid $500 therefor. He
ALLEGES in his complaint that the repre-
sensations made to him were false and
fraudulent, and upon the trial below
he received a verdict in his favor for
$500, and interest. Sufficiency of the
evidence to warrant the verdict is SuS-
tanned. The plaintiff, an illiterate
man, badly injured in an accident, and
physically a wreck, consulted with the
physician and surgeon in charge of a
medical and surgical institute or hos
pital, as to his condition and the proba-
bility of recovery. After an eXami-
nation by the surgeons he was pos
itively assured, if he told the truth
as to what was said, and the jury
found that he did. that he could be
cured, and by treatment at that insti-
tute could and would be made sound
and well. The court considered that
there was something more in defend
ants statements than the mere eX-
preston of his opinion upon a matter
of conjecture and uncertainty; that ii
| amounted to a representation that
plaintiff $ physical condition was such
| as to ensure a complete recovery. The
nature of plaintiffs injury was a
| fracture at the base of the skull an6
his injuries were incurable, as found
by the jury. The syllabus is as fol
| lows:
| Peter Hedin, respondent, VS.. Mime,
apolis Medical and Surgical Institute
ct al, appellants. Syllabus. l. False
| statements and representations to war
rant an action for deceit must be
generally speaking, as to materia
| fact, or facts, susceptible OF knowledge
and if they appear to be mere ex
pressions of opinion upon matters Of
| conjecture and uncertainty they arr
not actionable. But there are many
cases in which the false assertion Of al
opinion will amount to fraud.
| q Thus where a party poSSeSSe:
| special learning or knowledge on the
subject with respect to which he eX
| presses an opinion, a false Statement
and representation, made to one who
| is ignorant upon the subject, where
lows from reliance upon such an opin
ion, will support the action.
8. The evidence in this action wa:
sufficient to support the verdict il
plaintiffs favor. Order affirmed.
| COLLINS, J.
Following are the syllabi in the othel
cases in which decisions We're rem
dered yesterday:
y. H. Street, respondent, VS.. TIL,
Town of Alden ct al, defendants; 6
B. Mathwig ct al, appellants.
l. Where a defeated party in judicia
proceedings has been prevented from
fully exhibiting his case by his ad
versary, as by keeping him away from
court through false promise Of com
| promise, or where a defendant never
had knowledge of a suit, being KEEP
in ignorance by the acts of plaintilf
these and similar cases which show
| that there has never been a real con
test in the trial or hearings, are rea
sons for which a new suit may be sus
tanned to set aside and annul the for
| mer Judgment or decree and omen TIN