Clement v. Wheeler

| Superior Court of New Hampshire | Dec 15, 1852

Gilchrist, C. J.

It is unnecessary to refer to the allegations in the bill and answer, farther than to show what the facts were at the time the bill was filed, in order to ascertain whether the plaintiff had any reasonable ground for complaint. But an inquiry is necessary, to a certain extent, into the merits, because the result has a bearing upon the question of costs.

Elizabeth Clement was tenant for life, without impeachment of waste. Such is the allegation in the bill, and the admission in the answer. It is relevant to the question now before us, to inquire what such a tenant may legally do.

Chancery will interpose where the tenant affects the inheritance in an unreasonable and unconscientious manner, even though the lease be granted without impeachment of waste. Perrot v. Perrot, 3 Atk. 94; Aston v. Aston, 1 Ves. 264. These cases are referred to, as containing the law on this point, by Chancellor Kent, in the case of Kane v. Vanderburgh, 1 Johns. Ch. 11" court="None" date_filed="1814-04-26" href="https://app.midpage.ai/document/kane-v-vanderburgh-5550033?utm_source=webapp" opinion_id="5550033">1 Johns. Ch. 11. At common law, timber cut by the tenant for life, belonged to the owner of the inheritance, and the words in the lease, “without impeachment of waste,” had the effect of transferring to the lessee the property in the timber. Mooers v. Wait, 3 Wend. 104" court="N.Y. Sup. Ct." date_filed="1829-08-15" href="https://app.midpage.ai/document/mooers-v-wait-5513182?utm_source=webapp" opinion_id="5513182">3 Wend. 104; Payne v. Dor, 1 T. R. 55. And in general the words absque impetitione vasti, that is, “ without challenge or impeachment of waste,” enable the tenant for life to cut down timber and convert it to his own use. By the statute of Mwlbridge, ch. 23, it appears that lessees for life could not rightfully sell the trees or pull down the houses, unless the lessor had by deed granted them the power to do so. When that act was passed the clause “without impeachment of waste” was in use, “ which proves that it was to such purpose that the lessee might commit waste, and dispose it to his own use, which he could not do without such clause.” Bowles’ case, 11 Co. Rep. 81.

(But the extensive power given to the tenant for life by this clause may be exercised by him contrary to conscience, and in an unreasonable manner. It will, therefore, be so far restrained that he will not be allowed to commit malicious waste, so as to destroy the estate, which is called equitable waste./ A leading authority upon this point is Vane v. Lord Barnard, 2 Vernon, 738, commonly called “ Lord Barnard’s case.” The defendant, on the marriage of the plaintiff, his eldest son, settled Raby Castle on himself for life, without impeachment of waste, remainder to his son for life, and to his first and other sons in tail male.

Afterwards, having taken some displeasure against his son, the defendant got two hundred workmen together, and of a sudden, in a few days, stripped the castle of the lead, iron, glass doors and boards, &e., to the value of ¿£3,000. The son then filed a bill for an' injunction to stay waste, stating that the defendant had proceeded to demolish the castle, and had pulled down one of the rooms and sold the timber, lead, iron, and other materials, and converted the money, being a considerable sum, to his own use. “ The joists on which the floors were laid being each a whole oak tree, the said castle being heretofore very strongly built, and made use of for a fortification,” Lord Cowper immediately granted an injunction to stay the commission of waste in pulling down the castle, and afterwards decreed that the injunction should be continued, and that the castle should be repaired. And the court will restrain the tenant for life, without impeachment of waste, from committing equitable waste by cutting timber, planted or left standing, for the shelter or ornament of a mansion-house or grounds. Packington v. Packington, 3 Atk. 215; Strathmore v. Bowes, 2 Brown, Ch. C. 88. This principle has been extended from the ornament of the house to out-houses and grounds, then to plantations, vistas, avenues, and to all the rides about the estate for ten miles round. Lord Eldon, Devonshire v. Sandy's, note, 6 Ves. 110; Sir William Grant, Mahon v. Stanhope, 3 Madd. 523, note. The remedy by injunction is applicable to every species of waste, it being to prevent a known and certain injury. Hawley v. Clowes, 2 Johns. Ch. 122.

The defendants in the present case derive their title from Mrs. Elizabeth Clement, the devisee under the will, having a conveyance of all her interest in the land. They may exercise all the rights which their grantor possessed, but of course would be liable for exceeding the powers given them by her conveyance. In the case of Coffin v. Coffin, Jac. 70, the defendant, J. P. Coffin, who was tenant for life, without impeachment of waste, assigned his life interest to one Rowe, who was also a defendant, and Rowe was about to fell certain timber, but was restrained by injunction.

Now the defendants do not, upon the facts admitted, come within any class of persons who would, upon the authorities, be restrained by injunction from committing waste. It does not appear that they have done any acts which a tenant for life, without impeachment of waste, may not lawfully do. The bill, therefore, was in its origin improperly brought, and had no foundation, and was finally dismissed by the act of the plaintiff. They are, therefore, clearly the prevailing parties, and in that capacity entitled to costs by the statute, Revised Statutes, ch. 191, § 1; for the event of the suit is in their favor, and the costs are to follow the event, and there is no reason why we should exercise the discretionary authority which the statute gives us, and deny the defendants their costs. They stand like any other persons, against whom a groundless proceeding has been commenced, and afterwards abandoned. The general rule, as well in equity as at law, is that the prevailing party is prima facie entitled to costs. Vancouver v. Bliss, 11 Ves. 463; Colburn v. Sim, 2 Hare 543; Bryant v. Russell, 23 Pick. 508. The failing party must show the court th^t it would be contrary to the ordinary principles of justice that he should pay the costs of the proceeding. It is not usual to give costs “ where the unfortunate claimant has color of claim, and is barred by lapse of time.” Demarest v. Wynkoop, 3 Johns, ch. 147. But no caséis shown here to authorize the court to interfere, and take the question of costs out of the effect of the ordinary rule.

The other faets stated in the case, relating to the noncompliance, by the plaintiff, with the various orders made by the court, in the progress of the cause, certainly do not tend to establish any claim in his favor for costs. These orders he disregarded, and it was a matter within the discretion of the court whether his bill should be summarily dismissed, or whether further time should be allowed him. In such cases, the costs may be settled at the time, or the question may be reserved to abide the event of the suit. 1 Sim. & Stew. 357 ; Scarborough v. Burton, 2 Atk. 111. Here the extreme dilatoriness of the plaintiff, for which no excuse was given, sufficiently authorized the court to dismiss the bill, the case being in substance within that class where bills may be dismissed for want of prosecution. 2 Daniels’ Ch. Pr. 931. We shall, therefore, decree

Costs for the defendants.