Rogers v. Windoes

Campbell, J.

Plaintiff sued defendants for the wrongful conversion of testator’s property during his life-time. 'The court below held that the action died with the person, and no action survived.

By provisions now found in section 5828 of the Compiled "Laws, it is declared that, in addition to actions which survive by the common law, certain others, including replevin, ¡trover, actions for goods taken and carried away, and for damages to real or personal estate shall also survive. This provision is entirely free from ambiguity, and has been in ■force since 1838, (R. S. 1838, p. 428,) and the principle has been in force much longer. By the probate law of 1809' such actions for conversion of property were recognized as lying for and against personal representatives. 2 Terr. L. 28,

It is claimed however that in the Revision of 1838 a section was introduced giving actions expressly to and against" executors and administrators, and that the omission of this section while all the rest were retained indicates an intention, to abrogate the rule. We think on the other hand that it was manifestly dropped as a needless repetition of the same provision. And inasmuch as the very next section contains-a limitation, and therefore a recognition, of the right of action against executors and administrators, we should, on this construction, have an action preserved where the wrongdoer is dead, but none where he is living and the party injured is dead, which would be a strange anomaly. When, the law declares that a cause of action shall survive, it is-equivalent to saying an executor may sue upon it, and what is thus declared would not be strengthened by repetition.

Our previous decisions asserting the assignable quality of such actions were partly based on this statute, and in Final v. Backus 18 Mich. 218, this principle was made an express ground of adjudication. See also Brady v. Whitney 24 Mich. 154; Grant v. Smith 26 Mich. 201; Finn v. Corbitt 36 Mich. 318. And in Tome v. Dubois 6 Wall. 548, the-right of an assignee to bring trover was decided to rest on the ground that property could be sold which was in the-hands of wrong-doers, and that the form of action was incident to the wrong withholding.

It was further objected, — and this view seems to have-had some weight in the decision, — that the section in question was found in a chapter of the statutes confined to suits actually pending and abating by death of parties. Upon this it sufficient to say that when the Revised Statutes were-adopted there was no constitutional provision restricting legislation to matters set forth in the title to statutes, and it was not at all necessary to draw close lines. Yet even in this point of view it cannot be said that a provision of law referring to the course to be taken on survivorship of actions-may not be joined with one declaring what actions survive. But this need not bo dwelt on, because the language is too plain for misapprehension, taken by itself, and there is nothing in any part of the statutes requiring it to be limitedl

The judgment must bo reversed with costs and a new trial granted.

The other Justices concurred.