text:
    GRAY v. H. M. LOUD & SONS LUMBER CO.
    1. Mortgages — Foreclosure — Separate Parcels — Order op Sale.
    Where mortgaged premises are sold in separate parcels successively to different persons, without reference in the deeds to such mortgage, the parcels, in case of foreclosure, should be sold in the inverse order of alienation.
    2. Same — Recording Laws — Bona Fide Purohaser.
    Such rule, however, cannot be invoked in favor of a purchaser of one parcel, whether by contract or deed, who has failed to record the conveyance under which he claims, as against a subsequent purchaser in good faith of another parcel by conveyance duly recorded; but, on the contrary, such subsequent purchaser can insist that the former parcel be first sold to satisfy the mortgage debt.
    3. Same — Provision por Partial Release.
    A provision in a mortgage covering several lots, that it shall be released as to any lot on payment of a stated sum, will not enable a subsequent purchaser of one of the lots, who has not sought to avail himself of such provision, to attack a sale of the lot on foreclosure on the ground that it was subjected to the payment of more than the amount stated.
    4. Same — Usury.
    A purchaser of mortgaged premises cannot object to the mortgage on the ground that usurious interest was exacted 'from his grantor, since the defense of usury is a personal one.
    Appeal from Wayne; Carpenter, J.
    Submitted June 5. 1901.
    Decided October 8, 1901.
    Bill by Emma R. Gray against the H. M. Loud & Sons Lumber Company, impleaded with Anthony Muer, to set aside a foreclosure sale. From the decree rendered, both parties appeal.
    Reversed and bill dismissed.

      Bacon & Yerkes, for complainant.

      William H. McBryan, for. defendant.
   Moore, J.

On the 22d day of October, 1887, complainant purchased from Hibbard Baker, by land contract, lot No. 162 of the Waterworks subdivision of private claim 257, in the township of Hamtramck, county of Wayne, for a consideration of $500. Fifty dollars of the purchase price was paid at the date of the contract, $50 and interest November 25, 1887, $300 and interest during the year 1888, $50 February 1, 1890, and the final payment of $50 and interest April 1, 1890. Complainant did not record her contract. The lot was a vacant, unimproved one. Complainant received a warranty deed of the lot from Hibbard Baker and wife, in pursuance of said contract, on the 22d day of September, 1890, and two days later recorded it.

On May 3, 1887, Hibbard Baker and Howard G. Meredith executed to the State Savings Bank a mortgage on 45 lots of the Waterworks subdivision for a consideration of $5,000, which mortgage contained the following clause: “With the privilege of having any lot released at any time on payment of $300 and accrued interest, with three months’ extra interest.” This mortgage included lots 162, 251, 252, and 253. Releases were executed by the State Savings Bank at various times, releasing all the lots from this mortgage, except the four lots mentioned.

On the 28th day of February, 1889, Hibbard Baker and Howard G. Meredith executed to Caroline E. Richards a warranty deed for lots 251, 252, and 253. On the 18th of March, 1889, Caroline E. Richards deeded said lots to Gustave E. Mann, and on January 31, 1890, he deeded them to the H. M. Loud & Sons Lumber Company, which deed was recorded on the 15th of March, 1892.

On the 12th day of April, 1895, after all the lots subject to the mortgage had been discharged therefrom except lots 162, 251, 252, and 253, the State Savings Bank assigned the mortgage to the H. M. Loud & Sons Lumber Company for $472.42. Immediately on obtaining the assignment of this mortgage, the H. M. Loud & Sons Lumber Company commenced foreclosure proceedings against all of these lots, and on the 12th day of August, 1895, lot 162 was bid off to the H. M. Loud & Sons Lumber Company for $520.49, being the entire amount claimed to be due on said mortgage, together with the costs and expenses of foreclosure and sale. On the 13th of October, 1899, the H. M. Loud & Sons Lumber Company sold and deeded lot 162 to Anthony Muer for the sum of $750. The defendant the H. M. Loud & Sons Lumber Company had no knowledge of the existence of this mortgage to the State Savings Bank until some time after it purchased, in 1892. The complainant had no knowledge of the existence of this mortgage until the 3d day of February, 1896, and she paid all the taxes on this property from the time she purchased it until November, 1895.

November 24, 1899, complainant filed this bill, asking: (1) That the purchase of the mortgage by the Louds from the bank be decreed to be a full payment and satisfaction thereof as against Gray; (2) that the foreclosure and sale of lot 162 by the Louds may be declared null and void against Gray, and that the Louds may be decreed to release to Gray all their title and interest in and to lot 162 under and by virtue of the mortgage and foreclosure thereof; (3) for general relief. The court made a decree that neither party was entitled to have the other’s land sold prior to its own, but that the balance due on the mortgage, and expenses, amounting to $520.49, should be paid ratably by each of the four lots. The court also held that, as the defendant had sold lot 162 to a bona fide purchaser for $750, that amount was a fair valuation of the lot, and that the defendant should account to the complainant for that sum, less $130.12; and a decree was entered requiring the defendant to pay to the complainant the sum of $619.88, that being the difference between the amount for which the lot was sold and one-quarter of the mortgage and expenses. Both parties appealed from this decree, though complainant does not object to having it affirmed.

It is the claim of the complainant that, having purchased, and substantially paid for, her lot before the other lots were sold to defendant’s grantors, although her conveyance was recorded subsequent to the record of the first conveyance of the other lots, she was entitled to have those lots sold first for the satisfaction of the mortgage; citing Cooper v. Bigly, 13 Mich. 463; James v. Hubbard, 1 Paige, 228; Ellison v. Pecare, 29 Barb. 333; Libby v. Tufts, 121 N. Y. 172 (24 N. E. 12). In Libby v. Tufts, though the second purchaser put his conveyance on record first, the first purchaser had fully completed his contract, and entered into possession of the premises. A reference to the other cases will show they, too, are not controlling in this one.

Complainant insists that, even though she may not insist upon the lots being sold in the inverse order of alienation, the decision of the circuit judge is undoubtedly in accordance with the law applicable to all cases where it would be inequitable to apply the general rule, and is as favorable to the defendant as the circumstances warrant; citing Cooper v. Bigly, 13 Mich. 463; Bernhardt v. Lymburner, 85 N. Y. 172; Woods v. Spalding, 45 Barb. 602; Hill’s Adm’rs v. McCarter, 27 N. J. Eq. 41. In Hill’s Adm’rs v. McCarter the first purchaser took his deed subject to the mortgage, and the court very properly held his land was not wholly relieved from the lien. An inspection of the other cases cited will show they are not decisive of this case in favor of complainant.

If Miss Gray’s contract had been put upon record, or if she had gone into possession of her lot, and her possession had been so obvious that it would have been notice to subsequent purchasers, her contention that the lots purchased by the defendant must first be sold would be sustained by the great weight of authority. As she did not put her contract upon record, and her lot was a vacant, unoccupied lot, can the decree of the circuit judge be sustained ? When Miss Gray-obtained her land contract, and made payments thereon, she obtained an interest in the land described therein. Balen v. Mercier, 75 Mich. 47 (42 N. W. 666). Section 8988, 3 Comp. Laws, reads:

“Every conveyance of real estate within this State hereafter made, which shall not be recorded as provided in.this chapter, shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.”

Sections 9035-9038, 3 Comp. Laws, provide for the recording of land contracts.

The object of the recording laws is to protect subsequent bona fide purchasers (Godfroy v. Disbrow, Walk. Ch. 260), and to prevent fraud by securing certainty and publicity in such dealings (Atwood v. Bearss, 47 Mich. 72 [10 N. W. 112]). In Burns v. Berry, 42 Mich., at page 179 (3 N. W. 924), in commenting on the policy of the recording acts, the court says:

“The protection which this statute gives to a bona fide purchaser does not proceed upon the theory, and is not made to depend upon the fact, that the grantor, at the time of such conveyance, had any interest in the premises whatever, or that any passed from him by his conveyance to such subsequent purchaser. It is not by force of the conveyance, but by the terms of the statute, that such subsequent purchaser acquires title to the premises. His grantor, having previously conveyed, has no title left to convey, and could therefore by his deed, unaided by the statute, pass none to any third person. Our registry laws, however, step in, and, for the purpose of protecting an innocent purchaser, give him what he supposed, and from an examination of the records had a right to suppose, he was acquiring by his purchase, and to this extent cut off the previous purchaser who negligently failed to record his conveyance.”

Cooper v. Bigly, 13 Mich. 463, throws much light upon the question involved in this case. Justice Campbell, speaking for the court, said:

“ It has always been understood to be the settled law of this State that, where mortgaged premises are conveyed or incumbered in parcels, they are, upon a foreclosure, to be sold in the inverse order of such conveyances or incumbrances, unless the mortgagee will be prejudiced by having the property sold in parcels, — a'thing which can never happen where the property, when mortgaged to him, was treated as separate. This doctrine was recognized in Mason v. Payne, Walk. Ch. 459, and Caruthers v. Hall, 10 Mich. 40, in both of which cases the principal exception to the rule was referred to and enforced. The same principle was recognized and explained in James v. Brown, 11 Mich. 25. It rests chiefly, perhaps, upon the grounds that, where one who is bound to pay a mortgage confers upon others rights in any portion of the property, retaining other portions himself, it is unjust that they should be deprived of their rights so long as he has property covered by the mortgage out of which the debt can be made. In other words, his debts should be paid out of his own estate, instead of being charged on the estates of his grantees. Any other rule would be, in effect, to enable him to enjoy for his own benefit that which he has once vested in another, and, in a measure, to recall his own grant. The rule cannot, therefore, depend upon the existence or nonexistence of covenants of warranty. It depends simply on the fact whether he has or has not seen fit, in making a disposition of a part of his incumbered premises, to charge it primarily with the payment of the incumbrance. Whenever he so charges any part, the purchaser takes it subject to the burden, and the relative date of his purchase is immaterial. See cases cited above; Welch v. Beers, 8 Allen, 151; Kilborn v. Robbins, Id. 466. It has, indeed, in several cases cited at the bar, been held bhat the covenant of warranty was very important in determining the intent of the mortgagor not to charge the mortgage on the property sold. But there is no satisfactory authority holding that, in the absence of such a warranty, no such intent could be presumed. On the contrary, wherever the doctrine of priority is respected at all, it has been enforced unless an opposite intent was made out. And such appears to us the common-sense inference; for a man owing a debt, for which his own property remains liable, must naturally be supposed to expect to have it paid out of his own means, unless he has bargained to the contrary. And this equity, having arisen in favor of the first purchaser, must remain in his favor against any subsequent equities of other parties derived from his grantor.
“There are some States in which all parcels of mortgaged land are held liable ratably. See cases collected in notes to Story, Eq. Jur. §§ 633, 635, 1233a. And it has been suggested by Judge Story, and was claimed on the argument, that a purchaser of one lot cannot be expected to search the record for the title of other lots, and therefore should not be subjected to equities attaching to them. But this reasoning entirely passes over the well-settled rule that, where a person is obliged to take notice of a deed, he is bound by notice of all that it contains which can affect him. Having notice of a mortgage covering other lots besides his own, he is bound to ascertain whether those lots have been sold previously in such a way as to throw any peculiar burden on the one he is purchasing, just as much as whether that lot has been directly, instead of indirectly, conveyed or charged, prior to his purchase, by his grantor or his predecessors in the title. The registry laws furnish the means for one investigation as easily as for the other. And the construction put upon these laws is in accordance with this view. Chapman v. West, 17 N. Y. 125; Chase v. Woodbury, 6 Cush. 143; Brown v. Simons, 44 N. H. 475. This latter case is a well-considered case, and collects the authorities quite fully upon the whole subject, so that it will not be desirable to multiply the citations.”

Brown v. Simons is an instructive case, not only because it is quoted with approval by Justice Campbell, but also because it comments upon and disapproves Ellison v. Pecare, which is relied upon by the complainant. We quote:

‘ ‘ If, however, at the time of the subsequent conveyance by the mortgagor, the grantee has no notice of the prior conveyance, in fact or constructively (the same not having been registered), such subsequent grantee ought not to take the land so granted subject primarily to the whole debt. On the contrary, as the prior grantee has failed to record his deed, and thus give notice of the true state of the title, the subsequent grantee, unless otherwise notified, may rightfully regard the land which is thus apparently in the hands of the mortgagor as primarily liable for the whole debt. It is true that the first grant by the mortgagor of a part of the property does not in terms impose a lien upon what is left, but in effect it creates upon it, as between the parties, a new incumbrance, and makes it liable primarily for the whole debt, as much as if such mortgagor had mortgaged it to such purchaser to indemnify him against the original mortgage. It makes a case, then, that clearly comes within the spirit of our statute of enrollments, which is designed for the security of subsequent purchasers and creditors, to give notice of all conveyances of any estate in lands, whether legal or equitable. 1 Story, Eq. Jur. § 403; Parkist v. Alexander, 1 Johns. Ch. 398; 4 Greenl. Cruise, 448, 452, and notes; General Ins. Co. v. United States Ins. Co., 10 Md. 517 (69 Am. Dec. 174); Brush v. Ware, 15 Pet. 113. The Middlesex register act, which requires to be enrolled ‘all deeds and conveyances,’ was held to extend to every species of deed or instrument by which lands may be conveyed or affected; and therefore an appointment under a power is considered as a conveyance within the register acts. 4 Greenl. Cruise, 448; Scrafton v. Quincey, 2 Ves. Sr. 413. In that case it was contended that this deed was nót a separate conveyance, but only the execution of a power under a deed that was registered; but the court held that, if this. construction was to prevail, there would be an end of the registry law, for by this means a secret deed might be set up to defeat him who had registered before; and the court say the case is clearly within the mischief recited, which is to prevent a party from being defeated by a secret or pocket deed.
“In Brush v. Ware, before cited, the court, in discussing the general doctrine of notice, lays.it down that ‘no principle is better established than that a purchaser must look to every part of the title which is essential to its validity.’ And again, it is laid down in the same case that ‘ the law requires reasonable diligence in a purchaser to ascertain any defect of title; but, when such defect is brought to his knowledge, no inconvenience will excuse him from the utmost scrutiny.’ In accordance with such views it was held in Reeder v. Barr, 4 Ohio, 458 (22 Am. Dec. 762), that where a patent was issued to Newell, the assignee of Henson Reeder’s administrator, a subsequent purchaser was charged with notice of the equitable rights of the heirs of Reeder, because by the laws of Ohio an administrator has no power, unless authorized by the court of common pleas, to convey an interest in land. So, in Brush v. Ware it was held that, as the executor had no power of sale unless given him by the will, the •purchaser was bound to look into the will and see if such power was given. See, also, Backman v. Charlestown, 42 N. H. 134.
“If the first conveyance by the mortgagor, after the mortgage, is duly registered by the grantee, he has done all that he can do to give notice of the new burden that is thereby thrown upon the part which is retained by the mortgagor, and a second purchaser, charged, as he clearly is, with notice of the mortgage upon the whole land, and, when the deed is registered, knowing that the extent of the burden upon his own purchase must depend upon the fact of there having been a prior conveyance by the mortgagor, would, upon due inquiry, and in the exercise of reasonable diligence, be led by the record to a knowledge of the true state of the title, and the extent of the incumbrance upon the land conveyed to him. This he is directly interested to know, and the first purchaser has placed the means of knowledge reasonably within his reach, and it is his own fault if he neglects to avail himself of it. In the ■examination of the title to the part he proposes to buy he is led directly to the original mortgage, and he finds that Lis is but part of an entire tract in which his grantor has only a right of redemption, and which was originally subject to a common burden, but liable to be affected by a prior sale of another part of the entire tract. Under such •circumstances the different parcels of the tract mortgaged cannot, we think, be regarded as separate and distinct, so as to relieve him of the duty to inquire into the title to the other part; but we think that, in examining the title to the part he proposes to buy, he is led directly to a deed that puts him on inquiry as to the remaining part of the land. 2 Fonbl. Eq. book 3, chap. 3, § 1, note; 4 Greenl. Cruise, 452, note; Parkist v. Alexander, 1 Johns. Ch. 398. In accordance with these views is the doctrine of Chase v. Woodbury, 6 Cush. 143, where a mortgagor conveyed the whole of the mortgaged property to S. and R., to each an undivided half, and S., having recorded his deed, conveyed his half to C. before the deed to R. was registered; and, upon the payment by the representative of R. of the whole mortgage debt, it was held that he could not require contribution of C.,. because C. had purchased without any notice of the sale to R., and might, therefore, rely upon the other half being first held for the whole debt, although, had the deed to R. been recorded, it would have been notice of a lien on the land sold' to S. equally with the other; but the failure to record it was a failure of one claiming an incumbrance, namely, a lien on the estate for a contribution for one-half the money he might pay to redeem it, and this, the court held, stood upon the same-footing as if R. had a mortgage from the first grantor, which he had failed to record. The result of this case is. that & party purchasing a part of an estate under mortgage would be charged with notice of a registered conveyance of another part, when the effect would be to render his part so purchased liable to contribution equally with the other; and for the same reason he would be charged with such notice in a case where the effect would be to make his purchase primarily liable for the whole debt. The case of Chase v. Woodbury is directly in point, and fully sustains the views we have expressed.
“ It is true it has been suggested that this right to have first applied the lands remaining in the mortgagor’s hands, and those last sold, is a mere equity, and not a lien or incumbrance that comes within the provisions of the register laws, and so it is directly held in Ellison v. Pecare, 29 Barb. 333; and therefore it was decided that the deed first delivered would take precedence over a subsequent deed of another parcel, although the latter was. first recorded. In this case, however, it appeared that neither of these purchasers had knowledge of the original mortgage at the time of their purchase, and the court expressly decline to give an opinion as to the result had the second purchaser known of the existence of the mortgage, and had he examined the records, and, finding no previous conveyance, been induced to buy, supposing in good faith that he was the first purchaser; in which case it is said there would be some show of equity in favor of the second purchaser. In the case of La Farge Fire Ins. Co. v. Bell, 22 Barb. 54, it was held, upon much consideration, that the register act; which provides that ‘ every conveyance-not recorded shall be void against a subsequent purchaser in good faith of the same real estate, or any portion thereof, whose conveyance shall first be duly recorded,’ does apply to the equitable right which is acquired by a purchaser of a parcel of the mortgaged property to have the residue first applied to the payment of the mortgage debt, and that such equitable right will not be defeated by a prior conveyance of that residue,' unless it be by deed duly recorded, or other notice at the time of his purchase; and the reasons assigned for this doctrine are in no degree shaken by the subsequent case of Ellison v. Pecare, which appears to have been decided without an examination of the case of La Farge Fire Ins. Co. v. Bell. Indeed, it is difficult to see how any other result can be reached. The deed of a parcel of the tract mortgaged carries with it a well-established right to require the mortgagee first to exhaust the residue in the hands of the mortgagor before applying the parcel so conveyed; and, whether this right can be enforced only in equity or not, it is clearly a substantial interest in such residue, and one which it is the policy of the registry laws to protect. See Montgomery, v. Dorion, 6 N. H. 255; French v. Gray, 2 Conn. 108; 4 Kent, Comm. 456; Brown v. Manter, 22 N. H. 468.”

See 2 Jones, Mortg. (4th Ed.) § 1620.

When the defendant’s grantor purchased the three lots, the record did not disclose a sale to Miss Gray, and he had a right to assume that the mortgagee would resort to the land still standing in the name of Mr. Baker before selling the land purchased by him.

Counsel say:

“The mortgage contained the following provision: ‘With the privilege of having any lot released at any time on payment of $300 and accrued interest, with three months’ extra interest.’ Under this clause complainant was entitled to have her lot released at any time from the mortgage on payment of $300, and her lot should not be made liable to more than that amount on foreclosure of the mortgage, and any excess over that amount would have to be borne by the other lots, in any view of the case,” — citing Clarke v. Fontain, 135 Mass. 464.

It is doubtless true that complainant might have had her lot released from the mortgage by paying to the mortgagee $300, but she never sought tó do so. She waited nearly four years after the mortgage foreclosure before filing this bill, and it is not a part of the theory of the bill.

It is claimed there was paid to the bank about $70 extra interest, which was usury, and which should have been applied as a general payment on the mortgage debt. It has been repeatedly held that the defense of usury is a personal one, and may be waived. Sellers v. Botsford, 11 Mich. 59; Gardner v. Matteson, 38 Mich. 200.

The case is an unfortunate one for the complainant, but it is made so by her failure to put her contract upon record.

The decree is reversed, and the bill of complaint dismissed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CITY OF DETROIT v. WAYNE CIRCUIT JUDGE.
    1. Equity Jurisdiction — Contracts por Public Improvements— Injunction — Interest op Taxpayer.
    A bill to enjoin, a city from entering into a contract for a public improvement cannot be maintained by an individual taxpayer whose proportionate liability for the cost of such improvement will be less than the §100 essential to the jurisdiction of the chancery court.
    3. Same — 'Unsuccessful Bidder.
    Nor can such bill be maintained by an unsuccessful, though the-lowest, bidder for the contract.

      Mandamus by the city of Detroit to compel Flavius L. Brooke, circuit judge of Wayne county, to dissolve a preliminary injunction.
    Submitted September 24, 1901.
    Writ granted October 8, 1901.

      Timothy E. Tarsney and John W. McGrath, for relator.

      John J. Speed and Robert T. Speed, for respondent.
   Hooker, J.

The city of Detroit took bids upon a projected repavement of a street, and the award was made to-one of the bidders. Another bidder, who was also a taxpayer, filed a bill in chancery, alleging that the award should have been made to him as the lowest bidder whose-bid was alleged to have conformed to the specifications as-published, while that of the successful bidder did not. The bill prayed that it be so decreed, and for other relief. A preliminary injunction was granted, and,, on the filing of an answer denying the merits of the bill, a motion to dissolve the injunction was made, and, upon its denial, the city filed the application in this proceeding for a mandamus to compel such dissolution.

It seems to be conceded that the validity of the tax in this case is not questioned. The bill did not state a case requiring relief against a threatened sale of land for an invalid tax. The relator’s counsel assert that the amount of tax involved is 40 cents, and it is not claimed that it exceeds $100,— the amount necessary to confer jurisdiction in chancery cases. We need not consider the question of the right of a taxpayer to file such a bill in other cases. In George v. Electric-Light Co., 105 Mich. 1 (62 N. W. 985), there were 21 complainants; in Black v. Common Council of Detroit, 119 Mich. 571 (78 N. W. 660), there were 14; while in Robinson v. City of Detroit, 107 Mich. 168 (65 N. W. 10), and in Holmes v. Common Council of Detroit, 120 Mich. 226 (79 N. W. 200, 45 L. R. A. 121, 77 Am. St. Rep. 587), there were several, the number not being stated. From this fact, and the fact that the jurisdiction was not discussed, we may infer that complainants’ interests aggregated more than $100, or that they had property liable to be subjected to a lien worth more than that sum.

As a biddex1, the complainant has no standing. See Talbot Pav. Co. v. City of Detroit, 109 Mich. 657 (67 N. W. 979, 63 Am. St. Rep. 604); Anderson v. Board of Public Schools, 26 L. R. A. 707, 711, note l (s. c. 122 Mo. 61, 27 S. W. 610); Colorado Pav. Co. v. Murphy, 49 U. S. App. 17 (23 C. C. A. 631, 78 Fed. 28, 37 L. R. A. 630).’ We do not discover in the brief of respondent any claim that he has, as a bidder, a right to relief.

The writ will issue, as prayed.

The other Justices concurred.


author: Montgomery, C. J.

text:
    STENGLEIN v. SAGINAW CIRCUIT JUDGE.
    Mandamus — Injunction—Judicial Discretion.
    The discretion of a circuit judge in granting an injunction will be interfered with by mandamus only in case of a very plain abuse of such discretion.
    Equity Jurisdiction — Title to Office — Injunction.
    While title to a public office cannot.be determined in a, court of chancery, it is within the discretionary power of that court to issue an injunction protecting the possession of a de facto officer against the interference of an adverse claimant until the latter shall have established his right to the office in a proper proceeding.
    Same.
    The question presented on an application for such injunction is whether there is in fact a good-faith controversy over the office, and a probability of an unseemly conflict unless the court shall interfere to prevent it; and the writ would ordinarily issue as of course on such showing, unless, at least, the complainant’s case, as presented by his bill, were very clearly without merit.

      Mandamus by John Stenglein and others to compel Emmet L. Beach, circuit judge of Saginaw county, to dissolve a preliminary injunction.
    Submitted October 15, 1901.
    Writ denied October 17, 1901.

      William G. Gage and George W. Davis, for relators.

      James H. Davitt, for respondent.
   Montgomery, C. J.

This is an application for mandamus to compel the respondent to vacate an order for a preliminary injunction. It appears by the return of the respondent that on June 24, 1901, Matthew Gramlich and others filed a bill of complaint against the relators, setting forth, in substance, that the complainants in such bill were, under the charter of the city of Saginaw, as it existed prior to tbe amendment hereinafter referred to, and continued to be, members of the board of supervisors of Saginaw county, and representatives of the city of Saginaw on such board; that they are the actual incumbents of such office; but that the defendants named in the bill threaten to take the seats of the complainants, and sit as members of the board at future meetings of the board. The bill further alleges that at the session of 1901 the legislature undertook to withdraw the functions formerly exercised by complainants from them, and confer them upon defendants, and that said attempted legislation is unconstitutional. The bill asked for an injunction to restrain the defendants from sitting or attempting to sit as members of the board of supervisors, and also prayed that the complainants’ right and title to the office be adjudicated and determined in their favor. A preliminary injunction was granted upon this bill. The case was brought to our attention at the June term upon a motion for a mandamusj but, it appearing that no motion to dissolve the injunction had been made to the circuit judge, we declined to interfere at that stage. A motion has since been entered in the circuit court to dissolve the injunction, and the return shows that this application was denied, and the grounds stated by the circuit judge are set forth in an opinion attached to the return. These grounds are, in brief, that the complainants in the equity case are the incumbents of the offices, and that pending a determination at law, and in a proper proceeding by quo warranto, the incumbents of a public office may, where the circumstances require it, obtain an injunction to restrain interference with the performance of their duties.

We do not interfere by mandamus to control the discretion of a circuit judge in granting an injunction, except in a very plain case; and we should not in this case, unless thoroughly convinced of the want of jurisdiction to issue such an order. An examination of the authorities demonstrates that, in other jurisdictions at least, a court of equity has the right to interpose in protection of an officer de facto, against the. interference of claimants whose title is disputed, until the latter shall establish their title by judicial proceedings provided by law. Thus, in 2 High, Inj. (3d Ed.) § 1315, it is said:

“The actual incumbents of an office may be protected,, pending a contest as to their title, from interference with their possession and with the exercise of their functions. * * * And the granting of an injunction in such case in no manner determines the questions of title involved, but merely goes to the protection of the present incumbents against the interference of claimants out of possession, and whose title is not yet established,” — citing Brady v. Sweetland, 13 Kan. 41.

To the same effect is Reemelin v. Mosby, 47 Ohio St. 570 (26 N. E. 717). See, also, Guillotte v. Poincy, 41 La. Ann. 333 (6 South. 507), and School District v. Weise, 77 Minn. 167 (79 N. W. 668).

Relators’ counsel relies upon the case of City of Detroit v. Board of Public Works, 23 Mich. 546, as establishing a different rule in this State. That was a case notunlike the present in some respects, but it will be noted that the party complainant was not the officer de facto in possession of the office, but the city of Detroit; second, that the case was before the court on final hearing, and that the real question for determination was whether the title to the office could be determined by a court of chancery. It further appears in the statement of the case by Mr. Justice Chbistiancy that the various officers of . the old boards, whose powers and functions it had been attempted to transfer, had in the meantime continued to-hold over, and to act officially, as before, and that, for the purpose of testing fully the question of the validity of the act, informations in the nature of quo warranto had been filed against these various boards, and that these cases were, at the time of the hearing in this court, at issue. It will be seen, therefore, that, so far from the case indicating an attempt by the newly-created officers to invade by force, or in any unseemly way, the offices held by complainants, proceedings by quo warranto had been resorted to, and no necessity for an injunction, therefore, was shown. The question determined was that the title to an office could not be tried and determined in a court of chancery. To that holding we adhere. But it does not necessarily follow that the de facto officer, in possession of the office, may not be entitled to an injunction to restrain a claimant from interfering with his possession of the office until he shall entitle himself to do so by proper legal proceedings. The authorities elsewhere seem to fully sustain this right. We think, therefore, that it was within the power or the respondent to issue the writ of injunction until the defendants in the chancery case should, by resort to legal proceedings, establish their right to the office.

Having this power, has the respondent abused his discretion ? It would seem that, if such power exists at all, the question presented when an incumbent seeks such protection is whether there is in fact a good-faith controversy over the office, and a probability of an unseemly conflict unless the court shall interfere to prevent it, and that, upon such a showing, the relief would follow as of course, unless, at least, the complainant’s case, as presented by his bill, was very clearly without merit. Certainly it would not be the province of the court to determine a doubtful question of right to the office upon such an application as this. We think the case was one in which it cannot be said that there was any abuse of discretion, and that there is power to continue this injunction until the defendants in the chancery suit shall have resorted to legal proceedings to test the title to the office.

The alternative writ will be vacated, and the application for mandamus denied.

The other Justices concurred.


author:
Montgomery, C. J.
      Hooker, J.
      Long and Grant, JJ. Moore, J.

text:
    DOLSON v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Railroads — Negligent Injuries —Trespassers—Assumption op Risk.
    A servant of the consignee of a car load of stone, who, to the knowledge of the switching crew of the company, and in accordance with his custom, remains on the car, which he has commenced to unload, while it is being switched from its place and returned, does not become" a trespasser in so doing, or assume the risk of the company’s negligence in moving the car; and, if the car is shunted with such unnecessary force as to throw him therefrom, the company is liable for the resulting injury.
    2. Death by Wrongful Act--Personal Injuries — Survival op Actions — Remedies.
    3 Comp. Laws, § 10427, conferring a right of action for death by wrongful act or neglect, and section 10117, providing-for the survival of actions for negligent injuries to the person, do not give a double remedy for the same wrongful act. Nor is the remedy under the latter section (the survival act) excluded by the fact that death ultimately ensued from the injury. On the contrary, such section applies wherever a cause of action accrued to the deceased in his lifetime; the former section (the death act), only where the death prevented such cause of action from vesting, — in other words, where the death was instantaneous.
    3. Same.
    Hence, where a decedent survived his injuries for some 12 hours, being conscious a part of the time, the remedy of his administrator was under the survival act, and not under the death act.
    Montgomery, O. J., and Moore, J., dissenting, being of opinion that an action could be maintained under both statutes. n
    Error to Jackson; Peck, J.
    Submitted December 7, 1900.
    Decided October 22, 1901.

      Case by Daniel Dolson, administrator of the estate of Daniel Dolson, Jr., deceased, against the Lake Shore & Michigan Southern Railway Company, to recover damages for negligent injuries to decedent, resulting in his death. From a judgment for plaintiff, defendant brings error.
    Reversed in part.

      O. E. Weaver (George O. Greene and O. G. Getzen-Danneri of counsel), for appellant.

      Wilson & Cobb, for appellee.
   Montgomery, C. J.

This action is brought by Daniel Dolson, Sr., as administrator of the estate of his deceased son, Daniel Dolson, Jr., whose death occurred on the 8d day of October, A. D. 1898, under the following circumstances: Deceased and his half brother, James Davis, were engaged in unloading crushed stone from gondola cars standing on defendant’s team track in the yards in the citj’- of Jackson. The stone was owned by one Robert Lake, a business man of Jackson, and was being unloaded into wagons for him by Davis and deceased. There were three cars of this stone standing upon the track at the north end of the yard, at the usual place of unloading into wagons. Standing on the track next north of the stone cars was a box car loaded with granite, and north of that a short distance, on the same track, was a car loaded with hoops. At the time of the accident, Davis and Dolson had unloaded the north car of stone, and about one-half of the middle car, beginning at the south end. These gondola cars are about 30 feet long, with boxes 3 feet high.

About 11 o’clock a. m., yard brakeman French backed down from the south on the team track with an engine and four cars, and told Davis and Dolson that he wanted to take out the car loaded with granite that was on the track beyond them, and that he was going to pull out the stone cars, and for them to pull in their screen. French then coupled to the stone cars, and went south, pulling out the whole string, including the empty stone car and the car of granite. As was their custom, Dolson and Davis remained in the half-unloaded car. Dolson stood on the east side of the car, about six feet from the south end, leaning against the side of the car. Davis stood near the south end of the car, on the west side. This was about the position of the men at the time of the accident, a few minutes later. French took the whole train south and through the switch. The switch was then turned, and the train backed north on the main track. The car of granite and the empty stone car were cut off, and left on the main track, and the train again went south through the switch, which was again turned, and set for the team track. The train then backed north through the switch onto the team track, the train then consisting of the two stone cars in the rear, then four cars and the engine.

After passing out onto the team track, the train being in motion, French cut off the two stone cars, and let them pass on to the north, at the same time saying to Davis to stop the cars where he wanted them. These two cars slowed up or stopped near the cattle-chute. The testimony is in conflict as to whether the cars did or did not come to a full stop. French, seeing that the two cars of stone were not going to run down the track far enough, signaled the engineer to kick them farther back. . The engineer then went back with the engine and the four cars, and overtook the two cars of stone at or near the cattle-chute. Whether the stone cars had then come to a full stop or were still in motion is uncertain. The fact is, however, that the cars came together when the south end of the half-unloaded car was just opposite the cattle-chute. It is claimed on the part of plaintiff that the stone' cars had come to a full stop,- and that the engine and the four cars struck the south stone car with such great and unnecessary force that Dolson, who was standing back about six feet from the south end of the car, leaning up against and having hold of the side of the car with both hands, bracing himself, was thrown over the south end of the car between the two stone cars, and was run over by the south stone car. He was run over by the trucks under the north end of the south stone car, and, to all appearances, drew himself from under the car before the south trucks reached him. His injuries were such as to leave no hope of his surviving them, and he died about midnight of the same day, being a part of the time conscious.

The declaration contained two counts; the one under the survival act, so called, and the other under the death act. A recovery was had under each count, in the sums of $1,200 and $800, respectively. The two principal questions argued are: First, whether plaintiff can recover at all; and, second, whether, if entitled to recover, he is entitled to maintain an action under both the survival statute and the death act, and, if not, under which one he is entitled to recover.

The instruction of the circuit judge upon the first question was as follows: sonably necessary for that purpose, and to have taken the chances of any accident which might result from the use of that amount of speed and force. The use of such speed and force as were reasonably necessary, under the circumstances, to switch the cars, was-- lawful, and the defendant was not negligent in using it. And if the defendant ran its engine and connecting cars against the stone cars with unnecessary speed and force, the employment of such unnecessary speed and force was a negligent act, and constituted negligence, as charged in the first and third counts of plaintiff’s declaration. The question, then, upon this branch of the case, for you to determine,, is, Did the defendant use unnecessary force and speed, under the circumstances, in running its engine and connecting cars against the stone cars, upon one of which the deceased was standing at the time of the accident ? This is a material proposition in the case, and I submit it to-you as a question of fact, to be determined from the evidence bearing upon that subject.”

“The term ‘negligence,’ as used in this case, means a failure by the defendant to perform some legal duty it owed to the deceased at the time of the accident. It was the defendant’s duty, when it determined to move the car on which the deceased was working, and switch it back to the place where it originally stood, if the defendant’s agents who had charge of and performed that work knew that the deceased was standing on the car during the operation, to do the switching with such care and prurience as a reasonably careful and prudent man would exercise under the circumstances, and to run against the ■cars, on one of which the deceased was standing, with only such speed and force as was reasonably necessary for that purpose under the circumstances. It must be assumed that it was necessary to use some speed and force, or the result could not be accomplished. The defendant had the right to run against the stone cars with sufficient speed and force to move them into their proper positions. In doing so the defendant was performing an act necessary to be performed in the usual course of its business; and the deceased boy, when he chose to remain ■on the car during the operation, is chargeable with knowledge that the defendant would and must use such speed and force in running and switching the cars as was rea-

We think that, as applied to the facts of this case, this instruction was correct. Chadderdon v. Railroad Co., 100 Mich. 293 (58 N. W. 998); Illinois Central R. Co. v. Anderson, 184 Ill. 294 (56 N. E. 331).

Upon the question whethdr plaintiff is entitled to recover under both the death act and the survival act, my views have undergone no change since writing the opinion in Sweetland v. Railway Co., 117 Mich. 350 (75 N. W. 1074, 43 L. R. A. 576). On the contrary, my views have been fortified by a re-examination of the cases. Since that case was decided, the supreme court of Wisconsin, in an able opinion, written by Mr. Justice Marshall, and concurred in by the entire court, has held that, under statutes similar to ours, the two remedies are given. Brown v. Railway Co., 102 Wis. 137 (77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579). In addition to the case of Hurst v. Detroit City Railway, 84 Mich. 539 (48 N. W. 44), cited in the Sweetland Case, our attention has been directed to the case of Hyatt v. Adams, 16 Mich. 180, the reasoning of which, in my judgment, supports the contention of plaintiff. The able opinion of Mr. Justice Christiancy cannot well be epitomized without detracting from the force of that able justice’s convincing reasoning, but deserves a careful reading.

It is suggested that the Sweet-land Case decides that two remedies do not exist, and that all that now remains for decision is which remedy is open. I do not so read the Sweetland Case. In that case an action was brought with a count under the survival act and a count under the death act. On the trial the defendant had a verdict under the count on the death act. The plaintiff recovered under the survival act, and defendant alone appealed. The judgment was reversed. The holding, therefore, was that no recovery could be had under the survival act, under the facts of that case. Justices Grant and Moore were of the opinion that the testimony showed that the death was instantaneous, and that for this reason no recovery under the survival act could be had. Justice Long held that, in any case where death results, no recovery could be had under the survival act. In this view Justice Grant concurred, but neither of the other justices assented to this view. Justice Hooker expressed the view that, in any case where the death was not instantaneous, the survival act fixed the'remedy, and no remedy was given by the death act. In this view none of the other justices concurred. The writer of this opinion expressed the view that both remedies existed, and that the enactment of Lord Campbell’s act by our legislature was not intended as a repeal of the survival act. It will be seen that the abstract question whether two remedies were given was not before the court for determination.

The question is not different than it would be. if two separate cases were here. In such an event, the question whether a remedy existed under the statute invoked would be presented for decision. If a majority of the court were of the opinion that such a remedy was intended, would it not be applied ? There can be but one answer to the question. True it is that, in determining this question, it would be proper to take into account the question whether another remedy was given by another statute, which was intended to exclude the one invoked; and, in deciding this question, any presumption, more or less strong, that the legislature did not intend two remedies, would be proper to be considered. But this would, of necessity, be but a means to an end, or a process of reasoning, the ultimate question being whether the plaintiff, in the particular case in hand, was entitled to the remedy sought. Under no. procedure known to the law can the abstract question of whether two remedies oxist be presented. If in fact two remedies do not exist, the result must be reached by the process of. subtraction,• — i. e., if a majority of the court decide for the exclusion of either remedy, that remedy is to be counted out; but if, on the other hand, a majority declare for the remedy, that remedy exists; if this be true as to both remedies, both exist.

I do not understand that any one contends that it is incompetent for the legislature to give remedies to two parties for the same wrongful act of another. There is no declaration in either of the statutes that two remedies shall not exist. The question which must be presented whenever either remedy is sought is whether a statute which in its terms gives such remedy is rendered inoperative by the provisions of the other statute. The survival act was first passed. What logic is there in the position of one who asserts that the death act did not repeal the survival act, but that the survival act alone applies to a particular case, and who, notwithstanding this view, holds the exact reverse, i. e., that the death act did repeal the survival act, and that the death act alone applies to the case ? It is impossible for me to find that this court has decided that two remedies do not exist, or that it should.so decide until a majority of the court say that one or the other of the remedies sought is excluded by the other. This has not yet been done.

I understand, however, that a majority of the court are of the opinion that it should be held that, in a case where the death is not instantaneous, there can be no recovery under the death act, so called; 3 Comp. Laws, § 10427. A suggestion is contained in the opinion of Mr. Justice Hooker in this case that the language of the section in question that, “whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action,” etc., is to be construed as excluding a recovery in all cases where a cause of action at any time vested in the injured party. I do not so read the statute, but construe it, as indicated in my opinion in the Sweetland Case, to mean that where, at the time of the death of the injured party, no cause of action existed or remained, the remedy under this act would be excluded. ■ As was said in that case, if the injured party had recovered damages or settled for the injury, he would not, at the time of his death, have been entitled to maintain the action “if death had not ensued.” See, upon this subject, Littlewood v. Mayor, etc., of New York, 89 N. Y. 24 (42 Am. Rep. 371); Legg v. Britton, 64 Vt. 652 (24 Atl. 1016). Clearly, the language of the act, limiting the recovery to cases in which the injured party would have been entitled to maintain an action, should be construed to define the character of the injuries and the circumstances under which they were inflicted, and the words “if death had not ensued” have relation to the time when the action, under section 10427, is planted.

Referring to the construction which is placed upon this •statute in the opinion of Mr. Justice Hooker, it is stated in his opinion in the Sweetland Case that it is possible that this construction is foreclosed by decisions heretofore made by this court. I think I have pointed out in my opinion, both in this case and in the Sweetland Case, that such construction was so foreclosed; and, if it was foreclosed in 1898, it is foreclosed in 1901.

I think the judgment should be affirmed.

Hooker, J.

In the case of Sweetland v. Railway Co., 117 Mich. 329 (75 N. W. 1066, 43 L. R. A. 568), a majority of the court expressed the opinion that the law does not permit recovery by an administrator under both of the statutes which are there called, respectively, the “death” and “survival” acts. While we entertained different views upon these statutes, the result was that the judgment was reversed. The question is now before us again in a case where recovery has been had upon both statutes.

It has always been the policy of the common law not to permit recovery for causing death, nor to permit the survival of actions for personal injuries. While Michigan was still a territory, the rule as to the survival of actions for personal injuries was abrogated by the passage of the survival act, which covered assault and batteries. Under it one receiving a mortal wound had a cause of action which would survive. As yet no action was given for causing instantaneous death, though death following as a consequence was practically covered in assault and battery cases by the survival act, as stated. In 1848 the death act was passed, and it gave to the administrator a right to recover for the benefit of the widow and next of kin in certain cases. This was not an absolute right to the widow and child to recover, each for herself or himself, the damages actually suffered, which would have been a simple provision to make. It was hedged about by limitations. Apparently the legislature was not yet prepared to permit an administrator to recover for the death of the intestate such sum as could be wrung from a jury. It was only when it could be shown that the widow and next of kin had suffered pecuniary injury. Again, they were not permitted to bring several suits; all must be recovered through the administrator. This implies, to my mind, that it was intended that all damages should be recoverable in one action. As the law then stood, that was the only recovery that could be had, after death, where the death was caused by negligence, because the right of action for such did not survive. But, under the plaintiff’s theory, a double recovery might be had when death resulted from assault and battery. Aside from the improbability that the legislature would intentionally give the double remedy in one class of cases and not in the other, or that it repealed the survival act as to assault and batteries by implication, we find the language of the act limiting the right of action to a certain class of cases, viz., cases where the act, neglect, or default would, if death had not ensued, have entitled the injured party to maintain an action. We find, then, that, where death prevented an action from accruing to the deceased, this act gave a remedy, and in no other case; in other words, where the action was not prevented from accruing, it did not give a remedy. This section plainly proceeds upon the theory that death has prevented a right of action from vesting. Such would not be the case where a person lived after the injury, and it would be the case where the death was instantaneous. If this was not the legislative intent, why was this language inserted in the statute ?

It seems clear to me that this act was designed to cover cases of instantaneous death, where there was no other remedy, and that it was not designed to give a double remedy in cases where assault and battery caused death, in which cases the survival act already furnished a complete remedy, giving to the next of kin all of the redress which the deceased would have been entitled to, and not making it dependent upon or limited to an amount of actual- contribution to his or her support. It may be said that this view left no redress to -the widow and next of kin for negligent homicides not instantaneous, because such did not survive under section 10117, 3 Comp. Laws, as originally passed, and would not be covered by this construction of section 10427. This is true, but it does not justify our disregarding a plain condition upon which the right of action was made to rest, viz., that the death prevent a right of action accruing to the deceased. Subsequently this omission was supplied by the insertion in the survival act of the words “for negligent injuries to the person.” So, as the law now stands, the right of action is readily determinable. If the death be not instantaneous, the administrator recovers under the survival act the full measure of damages for the benefit of the next of kin. If it be instantaneous, he recovers under the death act, for the same persons, a limited amount of damages, viz., for such pecuniary injury only as they can be shown to have suffered.

There has never been a time when the common law has. deemed it wise public policy to permit speculation out of homicides, and the States have been conservative in permitting recovery for the death of a person. In New York a limit is placed upon the amount recoverable under the death act. I feel convinced that in our own State the policy has been to carefully limit recovery to actual pecuniary injury, and to one action, and not to permit it in those cases where the survival act is available. The sections of the statute are quoted in the opinion of the writer in the Sweevland Casé. To my mind this is the only con- ' sistent view to be taken of these statutes. It furnishes a. plain and reasonable rule, and, where there is doubt which act is applicable,, a joinder of counts will afford ample protection. It is supported by the decisions of Maine and New Hampshire, as shown in the opinion in the Sweet-land Case. There are many considerations mentioned in that opinion which are not repeated here, which are cogent reasons for this view, an important one being the effect on pending cases, which the survival act certainly wás intended to save, but which fall by the death under another construction, leaving a recovery under the death act a. doubtful contingency. ,

The judgment should be reversed as to the count upon the death act, and no new trial ordered, and affirmed to. the extent of the recovery upon the count based on the survival act. We feel justified in denying costs to either party.

Long and Grant, JJ.

We concur with Mr. Justice Hooker in holding that a double remedy does not exist in this class of cases. These views were foreshadowed by us in the Sweetland Case, 117 Mich. 329 (75 N. W. 1066, 43 L. R. A., 568). Inasmuch, however, as the majority of the court has determined in the present case, under the circumstances stated, that a recovery may be had under the survival act, we concur in that conclusion, as the testimony shows that the decedent survived for a space of time after the injury. If the injury had occasioned immediate death, no one questions but that the action must have been brought under the death act, and no other action would lie. While we expressed somewhat different views in the Sioeetland Case upon those statutes, the majority of the court now having held that the survival act applies under the circumstances here, we feel constrained to follow the rule laid down by the majority of the court, and hence concur in the opinion written by Mr. Justice Hooker, so that a rule may be established for the guidance of the circuit courts and parties in future cases.

Moore, J.

The troublesome question in this case is whether a recovery can be had under both of two acts, which, for convenience, maybe called the “death act”and the “survival act.” The question involved here was discussed in the case of Sweetland v. Railway Co., 117 Mich. 329 (75 N. W. 1066, 43 L. R. A. 568). Justice Montgomery was of the opinion a recovery could be had under both acts; Justice Hooker was of the opinion recovery could be had under the survival act, and not under the death act; Justices Long and Grant were of tbe opinion recovery could be had only under the death act; while I was of the opinion there was no evidence to show the deceased endured pain and suffering after her injury, and therefore, under the record as made, there could be no recovery, and it was not necessary to pass upon the other question. The result of the discussion in that case is that three of the judges held there could be a recovery under the death act, two of the judges held there could be a recovery under the survival act, one of the judges held there could be a recovery under both acts, and one of the judges expressed no opinion as to whether a recovery could be had under either or both of these acts; so that it cannot be said the question is concluded in this court.

No legal question has been brought to my attention recently in which there is more conflict in the decisions of the courts. The opinions are contradictory, and it woyld be difficult to reconcile them with each other. In 1889 a series of articles appeared in 28 Am. Law Reg. (N. S.) 385, 513, 577, wherein the writer undertakes to call attention to the decisions both in England and this country under the title of “Statutory Liability for Causing Death.” In this discussion there is a review and analysis of nearly all the cases which had been decided up to the time the articles were written. A reference to this series of articles will show how conflicting have been the decisions. As a result of the discussion, the learned author reaches the following conclusion, which I think is fully justified by the authorities:

“With this review of the authorities, including all of importance which have come to our notice, bearing upon the question of construction which we proposed at the outset, let us return to a consideration of that question upon its merits. We have no hesitation in declaring a preference for the view which regards the right of action given by Lord Campbell’s act, and those of our American statutes which do not differ widely from it in form, as a new right of action, and not a revival or continuation of a common-law right possessed by the deceased. When we consider (1) that the purpose-of the action is to compensate certain persons for the indirect injury to them involved in causing the death of another; (2) that the right of action thus given is not conditional upon a right of action having vested in the deceased, but arises as well in cases of instantaneous death as others, the remedy being in fact particularly called for in cases of sudden death; and (3) that the damages given in the action entirely ex-elude such as the deceased himself could have recovered, —we find it impossible to reach any other conclusion.
“ It is frequently said that the scope of the original right of action which the deceased would have had is merely enlarged so as to embrace the injury resulting from the death (see Cooley, Torts, 264); but this attempted explanation of the different rule of damages applied in the action under the statute will not serve its purpose, since not only are new damages included in the new action, but the old damages are entirely excluded. The remedy is not enlarged to embrace the death, but is, under the statute, confined to the death. It is sometimes said that it is impossible to draw a line severing with accuracy the damages to the person injured from those to his relatives. See, for example, Holton v. Daly, (1882) 106 Ill. 131 (page 140 of opinion). But it is a sufficient answer to this objection that both the language of the statute and all the decisions construing it require such a line to be drawn.
‘ ‘ Then, again, it is said that, although the measure of damages is different from what it would be in an action by the injured person in his lifetime, the cause of action is in both cases the same; that is, the wrongful act, neglect, or default. The simple answer to this statement is that the two actions are brought for different consequences of the same act, and are certainly as distinct from each other as is the action brought by a husband or father for an injury to his wife or child from the personal action of the wife or child for the same injury.
‘ ‘ The view that the right of action given by the statute is merely a continuance of the common-law right of action was first broached, as we have seen, when the question ofL permitting two recoveries arose. In our view, the courts, in their anxiety to prevent what was deemed a most undesirable result, overshot the mark, and advanced a theory of the statute which they could not successfully defend, and which was, perhaps, not necessary to accomplish the desired end. * * *
‘ ‘As to the right to maintain two actions after the death of the injured person (supposing him not to have recovered damages in his lifetime), where there is, in addition to the special act, a general provision of law making rights of action for injury to the person survive, it seems that such right should be ordinarily recognized, in the absence of an express provision to the contrary. The opposite and inconsistent courses adopted by different courts in the attempt to escape from this result seem to convict them all of being without warrant. If this is the correct view,, it will sometimes happen that two actions will be maintainable after death, one representing the injured person’s cause of action, the other the family’s cause of action, when, at the same time, a recovery upon the former, before death, would have precluded any further recovery whatever; and it may be urged as an objection to the view, therefore, that it involves an inconsistency. There is seeming force in this objection, but the charge of inconsistency should be laid at the door of the legislature which enacts the statutes. From the fact that the special statute only provides for an action after death when none has been brought in the lifetime it cannot properly be inferred that there is to be only a single action after death when there has been none during the lifetime; because, if for no other reason, there is nothing to indicate under which statute such action shall be brought, — which right of action, which liability, is to have the preference. It should be said that the phraseology of the first section of the English act cannot be used with any propriety where the general law provides for the survival of causes of action for injury to the person, as it assumes that such causes of action do not survive; and, if' so used, the circumstance of its origin should be taken into account' in the attempt to construe the statute in competition with the survival act. The language in such case must be recognized as merely containing an erroneous assumption with reference to the law of the State where it is adopted, and should not be deemed to have been used with the intent either of cutting down the survival act, or of restricting the natural meaning and operation of the statute -itself.” 28 Am. Law Reg. (N. S.) 580-584.

After the case of Sweetland v. Railway Co. was before this court, the question involved here was before the court in Brown v. Railway Co., 102 Wis. 137 (77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579), where there is a very full and able discussion, in which, referring to the provisions of the statute, the following language appears:

“They refer to entirely distinct losses, recoverable in different rights, — the one in the right of the deceased for the loss occasioned to him; the other in the right of the surviving relatives for the loss to them. Both are dependent on the injury, but only one dependent on the death with surviving relatives to take under the statute. The language of one provision is that ‘ actions for personal injuries shall survive;’ and of the other, ‘in case of the death of a person by the wrongful act of another,’ under certain circumstances named, the wrong-doer ‘shall be liable to an action for damages, notwithstanding the death of the person injured, if the death be caused in this State.’ The only condition of the right of action in the former case is the existence of the actionable claim for damages at the time of the death of the injured party. The statute creates no new liability, but prevents the lapsing by death of an old one. The only condition of liability under the other provision is the existence of an actionable claim in the right of the injured party at the time of his death and the existence of the beneficiaries mentioned in the statute. The liability of the wrong-doer, while dependent on the condition named, is not on the actionable claim, called for to satisfy such condition, but on a new right created by the statute, — the right of the surviving relatives to compensation for the loss which falls upon them. The language of the statutes, when viewed in the light of the evident legislative purpose, is too plain to justify courts in interpolating into them language no,t there by necessary implication from the context, in order to make them accord with the ideas of judges as to the best legislative policy. The judicial ■function, we need not say here, does not extend so far. It calls for a firm adherence to the law as written, if valid, without regard to individual opinions as to its being good or bad. In this we do not intend to suggest that the law in question, as construed here, is a bad law. On the contrary, there appears to be much wisdom in providing that a person who wrongfully causes a personal injury to another shall not profit by that other’s death, so far as actual damages go, either to the deceased person, or to the wife, husband, or lineal descendants or ancestors of such person.
“True, as claimed by the learned counsel for respondent, and before indicated, several courts, for whose judgment we entertain high regard, in construing similar statutes, have decided that the right of action to surviving relatives is exclusive, and that the personal injury action that survives under section 4253, Rev. Stat. Wis., does not include those where death ensues from the injury. A good example, among others cited in counsel’s brief, is Holton v. Daly, 106 Ill. 131. That learned court reasons thatthere is but one ground of liability, — the wrongful act, — and, as all claims for damages grow out of the one wrong, it is unreasonable to say the legislature intended there shall be two causes of action based upon it; that the more reasonable view is that the act making causes of action for personal injuries survive should be considered as referring to a special class of actions, not included in those named in the general provision giving a right of action to surviving relatives; that without that construction there would be a repugnance between the two provisions. The fallacy of that reasoning is easily -apparent. True, in the circumstances named, there is but one wrongful act, but that is not the sole ground of action in the right of the deceased or the survivor. It takes the wrongful -act and the loss to make the complete cause of action, and, as the loss to the person upon whom the injury is inflicted must be recovered by or in his right, and the loss to the surviving relatives by or in their right, the causes of action are clearly distinct. It does not require, apparently, much clearness of mental perception to discover that, if several persons are made to suffer pecuniary loss by one wrongful act, each may very properly have his independent cause of action and remedy for the loss resulting to him; and that, generally, in order to do complete justice, in the absence of some provision for a recovery for the benefit, of all and a distribution of the proceeds, separate causes of action must necessarily exist.
“The views of the Illinois court accord with the judgment of the supreme court of Kansas. McCarthy v. Railroad Co., 18 Kan. 46 (26 Am. Rep. 742); City of Eureka v. Merrifield, 53 Kan. 794 (37 Pac. 113); Martin v. Railway Co., 58 Kan. 475 (49 Pac. 605). It is significant that the former treats the act for the survivorship of the right to recover damages to the deceased for the benefit of his estate as a special provision, and that for the benefit of - surviving relatives as a general act, and that, giving them a literal interpretation, they are repugnant to each other in part; while the latter reverses the situation, treating the act of the claim for damages to the deceased as general, and that for the benefit of surviving relatives as special, the latter being intended to take away the right of survivorship for the benefit of the estate, which would otherwise be given by a literal reading of the former provision. The fallacy of both processes of reasoning grows out of a failure to observe the distinction between the wrong and the resulting loss; that, though,there be but one wrongful act and one physical injury, there may be several persons that suffer distinct losses, some of which are actionable at common law and some actionable dependent on the statute. Justice Brewer, who was a member of the Kansas court at the time the first decision there was rendered, and concurred in it, referring to the subject when he was later called upon to consider the matter as a member of the Federal bench, in the case of Hulbert v. City of Topeka, reported in 34 Fed. 510, said, substantially, that he doubted the correctness of his former opinion, and followed it only in deference to the settled judicial policy of Kansas, the cause being one that arose there; that the bases of recovery under the two provisions of law under consideration, the one for the benefit of the estate of the decedent, and the other for the benefit of his surviving relatives, are entirely distinct, the former being based on survivorship of the claim of the deceased, taking no note of the pecuniary loss to relatives, and the other on survivorship of relatives mentioned in the statute, taking no note of damages to the decedent; that the latter proceed regardless of whether the death was instantaneous or followed after months of pain and suffering, being damages to relatives by death, to be measured by their pecuniary loss caused thereby, while the former is for loss that would otherwise be a permanent injury to the estate itself. For further illustrations of the distinction, the following in Mr. Justice Wilson’s opinion in Needham v. Railway Co., 38 Vt. 294, is quoted by Justice Brewer: ‘The principles on which the intestate’s cause of action rested at common law are the same, irrespective of the cause of his death.’ It ‘died with his person, but is revived by the statute in favor of his administrator.’ It includes ‘nothing more than his intestate’s cause of action. The statute simply revives, but does not enlarge, the common-law right of the intestate.’ The provision for surviving relatives ‘introduced principles wholly unknown to the common law, namely, that the value of a man’s life to his wife and next of kin constitutes a part of his estate.’ ‘ Such damages to the widow and next of kin begin where the damage of the intestate ended, viz., with his death.’
“ The weakness of the theory that the action for injuries to the person which survives includes only those not covered by the statute for the benefit of surviving relatives is further illustrated by the fact that courts adhering to that view uniformly refer to Read v. Railway Co., L. R. 3 Q. B. 555. The decision there is only to the effect that, if an injured person have satisfaction of his claim before death, the subsequent death from the injuries does not confer a right of action upon surviving relatives; that such right exists only where there is an. injury to a person, and there is an existing claim for damages therefor at the time of his death. Justice Blackburn, who delivered the opinion, said, in substance, that the proper construction of the statute is that it gives a right of action to certain surviving relatives of a person when death was caused by the wrongful act of another, where he had not received satisfaction in his lifetime, and that to go further would be straining the language of the law. That seems plain. The language of our statute is that liability of the wrong-doer exists where the deceased could have recovered if death had not ensued. That clearly excludes the idea that, where the decedent receives satisfaction for his injuries, the conditions requisite to the right of surviving relatives may exist notwithstanding. There is nothing in Read v. Raihvay Co. in conflict with Blake v. Railway Co., 10 Eng. Law & Eq. 443, where, in a very instructive opinion by Coleridge, J., it is said that Lord Campbell’s act does not transfer to the surviving relatives mentioned the claim for damages previously possessed by the deceased, but gives to them an independent cause of action for damages peculiarly incident to their relation to the deceased. The two cases are often cited to opposite views, but are in fact, when correctly understood, in perfect harmony. The one holds that the right of the relatives named in the statutes is separate and distinct from that possessed by the deceased; the other, that the right of the relatives is contingent on the death of the injured person without having satisfied his claim for damages.”

I can see no fault in the reasoning contained in these excerpts, and think it entirely in harmony with the suggestions contained in Hyatt v. Adams, 16 Mich. 180, and Hurst v. Detroit City Railway, 84 Mich. 539 (48 N. W. 44). The language of the two acts is not ambiguous. There is nothing, to my mind, in the language of the death act which indicates it was intended to repeal the survival act; or in the language of either act which preeludes the representative of the estate of the deceased from recovering for the benefit of the estate under the survival act, and for the benefit of the persons entitled to the personal property of the deceased under the death act.

I agree with the Chief Justice that the judgment should be affirmed.