Peterson v. Clark

15 Johns. 205 | N.Y. Sup. Ct. | 1818

Per Curiam.

There can be no doubt but that the deed from Van Camp to Clark, and defeasance given back, amounted only to a mortgage,(^b) and the simple question then is,

whether a mortgagee can maintain an action of waste against the mortgagor, before the forfeiture of the mortgage ; for the waste alleged to have been committed in this case, was before the expiration of the time limited for the payment of the money secured by the mortgage. Indeed, the present suit was commenced before that time. Waste is an injury done to the inheritance, and the action of waste is given to him who has the inheritance in expectancy, in remainder, or reversion; but it is expressly laid down by Blackstone, (3 Bl. Com. 225.) that he who hath the remainder for life only, is not entitled to sue for waste, since his interest may never, perhaps, come into possession, and then he has suffered no injury. So, likewise, with respect to the mortgagee, especially when the mortgage is not forfeited, his interest in the land is contingent, and may be defeated by payment of the money secured by the mortgage; and it must follow, as matter of course, that he has not such interest in the timber as to sustain an action of trover. The judgment of the court below must be reversed.^(a)

Judgment reversed.

b S. P. Dey v. Dunham, 2 Johns. Ch. Rep. 189.

(a) “ An injunction lies against a mortgagor in possession to stay waste. The court will not suffer him t® prejudice the security,” Brady v. Waldron, 2 Johns. Ch Rep. 148.