Quinn v. Chicago, M. & St. P. R. Co. 141 Wis. 497.

damages suffered to them by reason of the wrong. No right of action, in any event, existed in favor of collateral relatives. After commission of the wrong, by ch. 164, Laws of 1907, sec. 4256 was amended adding a third class of beneficiaries, viz.: brothers and sisters, in case of a death caused by such an injury under the circumstances named. It will be observed that the right of action in such a case as this is dependent upon, first, death of a person caused by actionable negligence of a legally responsible party, second, survival of relatives mentioned in the statute who had a pecuniary interest in the continuance of the life. Hence, without the particular survivor, or survivors, mentioned in the statute there is no right of action for damages other than the one in favor of the person injured. Woodward v. C. & N. W. R. Co. 23 Wis. 400; Regan v. C., M. & St. P. R. Co. 51 Wis. 599, 8 N. W. 292; Gores v. Graff, 77 Wis. 174, 46 N. W. 48; Topping v. St. Lawrence, 86 Wis. 526, 57 N. W. 365; Schmidt v. Menasha W. Co. 99 Wis. 300, 74 N. W. 797; Brown v. C. & N. W. R. Co. 102 Wis. 137, 77 N. W. 748, 78 N. W. 771.

The right of action for the benefit of survivors, though sometimes spoken of as one which survives, is really not that, because it does not come into existence till the death of the injured person occurs. Topping v. St. Lawrence, supra; Brown v. C. & N. W. R. Co., supra. However, the right, inchoate in character as distinguished from the right of action, comes into existence and becomes fixed as soon as the injury occurs, but the right of action waits upon death occurring.

Counsel for appellant, in this case, failed to discover that the terms, "new right or cause of action" and "new right," used particularly in Brown v. C. & N. W. R. Co., supra, were treated as synonymous, going no further than the term "right of action" used in previous decisions, and not as suggesting a right the violation of which creates a right or cause of action. The latter depends upon the former. Without the one there cannot be the other. That one relates to and springs into

Quinn v. Chicago, M. & St. P. R. Co. 141 Wis. 497.

existence at the time of commission of the wrong, and is not violated so as to create the cause of action till that wrong results in death. It is said in the Brown Case that the wrong is single. From it there may spring two complete violations of rights, making two distinct causes of action. The one becomes vested the instant the injury happens, the other is in suspense till death occurs.

It must follow from the very logic of Brown v. C. & N. W. R. Co., upon which the learned counsel depend, that all rights of action for the death of a person, as in this case, must depend upon the status as regards the law at the time of the injury, for it is then that the remedial right, as against the wrongdoer, must exist and its violation commence, in contemplation of the statute, in order that the final event terminating the possibility of pecuniary benefits accruing to the statutory beneficiary by a continuance of the life may constitute a remediable wrong.

The result is that the law of 1907, passed subsequent to the wrong, adding collateral relations to the class of persons for whose benefit such an action as this may be brought, did not give such persons a right of action, because not having a remedial right at the time of the injury which could then form the basis of a right of action contingent upon the death of the injured party.

It seems that the logic of Keeley v. Great N. R. Co. 139 Wis. 448, 121 N. W. 167-where, under a law passed subsequent to the injury increasing the maximum amount recoverable in such cases and plaintiff sought to recover the increased amount, the court held that such subsequent law, in effect, created a new right of action as distinguished from a new remedy to enforce an existing right of action-is in harmony herewith. It was substantially held that the law not only did not, but could not, legitimately, have a retroactive effect; that rights growing out of a wrong must relate to the happening of the wrong itself.

Young v. Miner, 141 Wis. 501.

If it were am

The statute is not by its terms retroactive. biguous on that point it would, on general principles, have to pass successfully the test of strict construction to be held retroactive in intent (Vanderpool v. La Crosse & M. R. Co. 44 Wis. 652, 663), and particularly so since it is somewhat penal in character, though, of course, not classible as a penal law, strictly so called. Then, again, the decision referred to and the result here is within the principle that the legislature cannot, if it would, pass a law creating new obligations based on past wrongs or acts, though it may provide new remedies for existing situations. Klaus v. Green Bay, 34 Wis. 628; Lombard v. Antioch College, 60 Wis. 459, 473, 19 N. W. 367.

So from any viewpoint the proposition suggested is surveyed it must be resolved in the negative in harmony with the circuit judge's decision.

By the Court.-Judgment affirmed.

YOUNG and another, Appellants, vs. MINER and others, Re

spondents.

January 13-February 1, 1910.

(1-3, 8) Trial: Findings: Duty of trial judge: Appeal: Review in absence of findings: New trial. (4-7) Mortgages: Release of equity of redemption: Validity: Intention: Consideration: Evidence: Estoppel as to third persons.

1. Under sec. 2863, Stats. (1898), the trial judge is required to make a finding upon each controverted issue of fact and also to state his specific conclusions of law thereon from which the ultimate judgment results.

2. A finding that at the commencement of the action plaintiffs had no right, title, or interest in the land described in the complaint, is not a finding of fact.

3. Although, because of the failure to make proper findings, the ground upon which the trial court based its judgment is left to conjecture, yet the supreme court will examine the evidence to

Young v. Miner, 141 Wis. 501.

ascertain whether a fair preponderance thereof supports such judgment or would support a judgment the other way, or whether a new trial is necessary to a just determination of the rights of the parties.

4. In order to support a transfer of mortgaged land by the mortgagor to the mortgagee, terminating the right of redemption, it must be clearly shown that the conveyance or release was voluntary on the part of the mortgagor, was based upon an adequate consideration, was untainted by fraud, and that no advantage was taken of the debtor's necessities to drive a hard bargain. 5. The evidence in this case is held insufficient to show that by such a transfer the mortgagors intended to release all equity of redemption, or that the transfer was voluntary on their part. 6. Such a transfer, by embarrassed mortgagors to the mortgagee, of land worth from $2,000 to $3,000 for no consideration except the mortgage debt and some trifling additions, aggregating $900, cannot be sustained.

7. An estoppel as against the mortgagors making such a transfer to the mortgagee, in favor of a third person claiming title under such mortgagee, is not established by evidence which fails to show that the conveyance to such person was based upon a valuable consideration or even that he was ignorant of the mortgagors' rights.

9. In an action tried by the court in which there are no findings of fact upon the controverted issues and the record does not support the judgment for defendant but shows an incomplete trial and many things necessary of explanation to enable the court to do justice between the parties, the judgment will be reversed and the cause remanded for a new trial.

APPEAL from a judgment of the circuit court for Richland County: GEORGE CLEMENTSON, Circuit Judge. Reversed.

Action to redeem from a mortgage the south half of the southeast quarter of section 21, township 10, range 1 west, in Richland county, Wisconsin. It appeared that in 1895, 160 acres of land, including the above description, had by several heirs been transferred to one of them, namely, Jesse Young, under a family arrangement. He, on December 26, 1895, executed a mortgage thereon to J. W. Lybrand for $650, and immediately deeded the south half of the southeast quarter of the section to the plaintiffs, his brothers, subject to said mortgage and upon their agreement to support their mother, who

Young v. Miner, 141 Wis. 501.

died in 1897. It is claimed that there was a verbal understanding that $300 of the mortgage should be assumed by the plaintiffs and the rest should be taken care of by Jesse. A few partial payments of interest were made from time to time. until February 25, 1899. Jesse Young and the plaintiffs had made an additional mortgage to one Hallin for $94.47 which on February 9, 1898, had been transferred to J. W. Lybrand, and Jesse Young had transferred the north half of the 160 acres to a brother-in-law, Jasper Haller.

On February 25, 1899, Jasper Haller and the plaintiffs executed and delivered deed to J. W. Lybrand of all the premises, which the plaintiff's claim was not effectual to extinguish the equity of redemption, and the defendants claim. was so effectual, and that it was based upon the discharge of the $650, the payment of the John Hallin mortgage, with interest, and the payment of a small judgment against the Youngs, all amounting to about $900 at date of said deed. Much evidence was offered as to this transaction and as to the subsequent conduct of the parties. Confessedly the plaintiffs remained in possession until some time in 1905, when they were evicted by some irregular process; also that they made some payments of what the plaintiffs call interest and the defendants now call rent. At the time of the deed to Lybrand there was an agreement entered into that the grantors might retain possession for the balance of the year 1899 upon payment of interest and taxes for that year, and a lease was made to Haller of the entire premises commencing January 1, 1900, in which the rent confessedly was the computed amount of the interest on $913, to wit, $64. J. W. Lybrand died soon after, and an undivided half of this property was conveyed by his son, R. C. Lybrand, to the former's daughter, Nellie Miner, by warranty deed, on July 8, 1901. The deed is not in evidence and there is no proof as to the consideration. Nellie Miner conveyed the south half of the southeast quarter to James Shannon by warranty deed on October 2, 1907.