Kane v. Vanderburgh

| New York Court of Chancery | Apr 26, 1814

The Chancellor.

The waste is explicitly and sufficiently charged in the bill to support the injunction. Nor is it essential to this remedy that there should be an actual Us pendens in a court of law. There are numerous cases i» chancery, as Lord Hardwicke has frequently observed, (Perrot v. Perrot, 3 Atk. 94. Robinson v. Litton, 3 Atk. 210. Farrant v. Lovell, 3 Atk. 723. Garth v. Cotton, 1 Ves. 556.,) in which the court has interposed to stay waste, by the tenant, where no action can be maintained against him at law. Thus, where there is lessee for life, .remainder for life, remainder in fee; the mesne remainder-man cannot bring waste, nor the remainder-man in fee, but chancery will interpose and stay the waste.

So equity will, in many cases, restrain waste, though the lease contain the clause without impeachment of waste, and which takes away the remedy at law, as where this power is exercised in an unreasonablemanner, and against conscience. (Aston v. Aston, 1 Ves. 264. Strathmore v. Bowes, 2 Bro. 88.)

Chancery goes greater lengths than the courts of law in staying waste. It is a wholesome jurisdiction, tobe liberally exercised in the prevention of irreparable injury, and depends on much latitude of discretion in the court.

The tenant for life is here suffering injury to his own interest, and he, by his tenants, is doing great injury to the inheritance, which it is his duty to prevent. He is bound to stop the mischief, or be responsible himself. To suppose that an ejectment must be actually commenced before the injunction can issue, is certainly an error; this would be placing the operation of waste beyond the reach of control during the period of the six months’ notice. Indeed, the notice to quit-may be considered as the commencement of an adverse proceeding at law, and sufficient to bring the case within the spirit of the decision in Lathrop v. Marsh, (5 Ves. 259.)

Motion denied, with costs.