6 Barb. 507 | N.Y. Sup. Ct. | 1849
The common law doctrine of the courts, in regard to waste, was most elaborately and learnedly discussed by Lord Chief Justice Eyre, in the case of Jefferson v. The Bishop of Durham and others, (1 Bos. & Pull. 120.) At conimon law, said he, the proceeding in waste was by writ of prohibition from the court of chancery, which was considered as the foundation of a suit between the parties,. If that writ was obeyed, the ends of justice were answered. But if that was not obeyed, and an alias and pluries produced no effect, then came the original writ of attachment, returnable in a common law court, which was considered the original writ of the court. The form of that writ shows the nature of it. It was the same original writ of attachment which was and is the foundation of all proceedings in prohibition. That writ being returnable in a common law court, on the defendant’s appearing, the plaintiff counted against him, and he pleaded, and the question was tried, and if the defendant was found guilty, the plaintiff recovered single damages for the waste committed. This remedy, at common law, was somewhat extended by the statutes of Marlbridge and Gloucester; the latter of which gave a writ of waste or estrepement pendente lite. Then came the statute of Westminster the second, which took away the writ pf prohibition entirely and gave the summons in its stead. This was the common remedy, with the writ of prohibition abolished, and the summons in its place with the judicial writ of estrepement given pendente lite. There was, however, in real actions by the common law,' another remedy of a preventive nature in the writ of estrepement, which followed the judgment inxtbe real action, The writ went to the sheriff after the judg
The plaintiff claims that the defendant had forfeited the contract, by not keeping up the payments, and that an end had been put to this contract by the parties. I have looked carefully into the evidence in the case, and it fails entirely to show any such thing. It is undoubtedly true, from the evidence, that the. defendant failed to make his payments, and’ the plaintiff therefore had a right to elect to consider the contract forfeited, and bring ejectment and put the defendant out of possession. And' unless he did elect to consider, the contract forfeited, the defendant was fully justified in holding under it; and it remains to,
There is nothing in the evidence which shows that the parties have ever put an end to this contract. It is not important for us to inquire what are the legal rights of these parties under this state of things. The plaintiff has come into a court of equity and submitted his case to the equitable jurisdiction of the court, and he must be satisfied with the determination of his case upon the ¡principles which courts of equity have applied to similar cases.
Under the rule which obtains in courts of equity the defendant, by the contract of sale, is deemed the equitable owner of the premises, and the plaintiff stands in the situation of an equitable mortgagee. (6 Ves. 349, note a. 15 Id. 138. 2 Story’s Eq. Jur. p. 628, §§ 789, 790, 1212. 6 John. Ch. Rep. 403. 3 Id. 316. 1 Barb. Sup. Court Rep. 495. Edgerton v. Peckham, 11 Paige, 359.) Now it is a familiar rule in equity, that a mortgagor in possession has the right to cut timber; and a court of equity will not interfere to restrain him in the exercise of that right, until it is made to appear to the court that he is cutting to an extent calculated to render the land an incompetent security for the amount due upon the mortgage. (2 Story’s Eq. Juris. § 915. Brady v. Waldrons, 2 John. Ch. Rep. 148. 8 Ves. 105, note 1. Hoppesley v. Spencer, 5 Madd. 422. Farrant v. Lovell, 3 Atk. 723. Wright v. Atkins, 1 Ves. & Bea. 314. Scott v. Wharton, 2 Hen. & Munf. 25.) I know there are some cases which hold that the whole estate is security for the mortgage debt, and that the courts should therefore interfere by injunction to restrain all waste, without reference to the question whether the acts were calculated to impair the security or not. I am not prepared to recognize the doctrine con-
In Cox v. Goodfellow, which was the case of a bill against the assignees under a commission of bankruptcy against the mortgagor; for a foreclosure and an injunction against cutting timber, the vice chancellor refused the injunction, stating that the rule had been settled by the lord chancellor and himself that ail injunction should not be granted in such a case, unless the mortgagee showed that the security would be so reduced by the waste as to render it an inadequate security. (8 Vesey, 105, Sumner's ed. note 1.) The same doctrine was affirmed in the case of Hoppesley v. Spencer, (5 Madd. 422.) The same principle is laid down in the broadest terms in Scott v. Wharton, (2 Hen. & Munf. 25,) in which case it is expressly adjudged that an injunction to stay waste ought not to be granted to a vendor against a vendee to whom he has sold a tract of land in fee simple, retaining the title as a security for the purchase money; unless he brings his suit to subject the land to'the payment of the purchase money and charges the defendant with cutting and selling timbef in a manner calculated to render the 1 and an incompetent security; in which case an injunction to stay waste may be awarded.
The same doctrine was again affirmed on a bill filed by the mortgagee against the mortgagor, to restrain waste, in the case of King v. Smith (2 Hare’s R. 239.) This case is cited by the learned. Justice Story in his Commentaries on Equity Jurisprudence, 2 vol. page 246, § 915. Story lays down the rule in these words; “If the mortgagor in possession should fell timber on the estate and thereby the security would become insufficient, (but not otherwise) a court of equity will restrain the mortgagor by injunction;” (2 Story’s Eq. Juris. § 915.) This, it seems to me, is the reasonable rule, and as far as a court of equity should go in such cases. The doctrine that the whole éstate is pledged by the mortgage, as security for the mortgage debt, is all true. The mortgagee’s interest, however, is but a chattel interest, even after forfeiture. (2 Barb. Ch. Rep. 134, 5.) The land, in equity, belongs to the mortgagor; and it seems id
But again; this is a bill quia timet; a bill by which the party obtains the injunction because he fears some present or future injury to his rights or property, and not because an injury has been done. Now there is not a single pretended act of waste shown by the evidence in this case to have been committed within a year of the time of the filing of this bill; and there are no threats or probable grounds shown in the evidence
But again ; if we were of the opinion that this bill ought to be sustained to prevent future waste, I do not see how we could give an account of, and satisfaction for, waste already committed, as there is no prayer in the bill for an account of the waste already committed. I have looked very carefully into the books, and have not been able to find a single case in which an accounting for waste committed has ever been decreed unless the relief was sought by the prayer of the bill. (See Eden on Inj. 244 to 249.)
At the time of the filing of the bill in this case an injunction was issued, and upon the coming in of the answer, the court dissolved the injunction, and the plaintiff asks the court to re
Decree accordingly.