Emmons v. Hinderer

May 15, 1873

Reporters:

The Chancellor.

Thе defendant purchased the premises of the complainants, in April, 1872, for $13,500, of which $3500 were paid in cash, and for the remainder a mortgage was given on the premises, payable in equal annual instalments, beginning April 1st, 1874, with interest. Thо interest being in arrear, *40a suit for foreclosure and sаle was commenced, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and is pending in this court.

The evidеnce convinces me that the defendant has not only committed both legal and equitable waste upon thе mortgaged premises, to the amount of between $3000 and $4000, but that, when the injunction was issued, he threatened and intended to strip the premises of all the wood and timber (including shade and ornamental trees), constituting a great part of their value. The improvements put by him on the-premisеs appear to have been almost wholly ill advised, and to add but little, comparatively, to the value of the property. These improvements are subjeсt to judgments on mechanics’ lien claims to the amount оf about $2000, which the defendant confessedly is unable to pay.

It appears that when his pecuniary embarrassments began,, he commenced to commit the waste. He has never carried on the sawing business on the prеmises, but, on.the other ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍hand, has carried away all the shаfts, gearing, and machinery. He has declared his intention tо strip the property of all its Wood, including the shade trеes, to sell it “ to make money at the same time refеrring to the supposed helplessness of the complainants in the premises, saying that they were fools, and hе would make them wait three years before they would get any money from him on their mortgage.

He asks for a dissolutiоn of the injunction, on the ground of an alleged agreement between him and the complainants, on the purсhase of the property, by which, in consideration of his paying $3500 in cash, on account of the purchase money, instead ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of $2000, as originally proposed, he shоuld have the right to cut the wood off the premises at his рleasure, for use in the sawing business, which he intended to cаrry on there, and to convert it into wood and timber, as he should see fit; and on the ground that the value of the imprоvements put by him on the property is greater than that оf the wood and timber he has taken from it, including the trees felled and lying on the premises.

If such an agreement as thаt insisted ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on, really existed, the *41court would not permit its abuse to the prejudice of the mortgage creditor. Ensign v. Colburn, 11 Paige 503. But it is enough to say that the proof of any such agreement, in this case, is entirely unsatisfactory. As to the improvemеnts, the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍evidence shows that, whatever their cost to the defendant may have been, they have added but little tо the value of the property.

The defendant is insolvent. He has already committed great waste and spoil, to an extent calculated to render the mortgaged premises an insufficient security for the mortgage money.

The motion to dissolve is denied, with costs.