Hastings v. Perry

The opinion of the court was delivered by Hall, J. The bill is brought by the administrator of a mortgagee against the mortgagor and three others claiming title by him, and also against four others, who were not parties to the title, complaining of the commission, by all the defendants, and the farther threatened commission by them, of waste on the mortgaged premises, by cutting and carrying away wood and timber trees ; and praying for an injunction against future waste and an account for waste committed. An injunction was granted on the filing of the bill, and, after answer and testimony taken, an account was ordered, and the master ascertained and reported the amount of the waste committed by each defendant, — upon which the chancellor made a decree, directing the payment by the defendants of the several sums reported as the waste of each, together with the costs of the suit by all the defendants jointly. From this decree the defendants appealed. From the bill, answers and testimony it appears, that the complainant, after condition broken, at the September Term of the county court in 1841, commenced his action of ejectment against the four defendants first above mentioned, and at the same term recovered judgment against them, which they reviewed; that at the April Term, 1842, final judgment was rendered against them ; and, on motion to redeem, the amount of the mortgage money was ascertained and a time given for redemption, — which expired May 1, 1842, without payment. In January and February, 1842, pending the ejectment, the waste complained of was committed by the defendants, — the four defendants who were strangers to the mortgage title not being in possession, or acting in concert with each other, but separately cutting and - carrying away timber, by license or purchase from some of the other defendants, parties to the title. It also appears from the tes [278] timony, that the value of the mortgaged premises, with the amount of the waste ascertained by the master, would both together be less than the sum due on the mortgage. It is insisted in behalf of the defendants, that this bill cannot be sustained for an account, either against the parties to the mortgage, or the other defendants. Of the right of the mortgagee to an injunction to restrain the mortgagor from the commission of waste, by which the mortgage security is in danger of being reduced in value below the amount of the mortgage debt, there can be no question. The doctrine has been too long established, and too frequently acted upon in this State, to be now controverted. This bill, however, goes a step farther, and, in addition to an injunction to stay future waste, asks for an account of and satisfaction for waste already committed; and to this portion of the remedy the principal objections of the defendants to the decree of the chancellor are interposed. It was laid down by Ld. Hardwick, in Jesus’ College v. Bloom, 3 Atk. 262, as a general rule, that in bills for injunctions for waste the court should proceed to make a complete decree and give the party satisfaction, and not oblige him to bring an action at law. This rule has been acted upon in many subsequent cases; and it has become a common doctrine, found in the elementary writers, that in all cases, in which a bill for an injunction will lie, the courts of equity, upon the principle of preventing a multiplicity of suits, will give an account of and satisfaction for waste already committed. Eden on Injunctions 146. 1 Mad. Ch. 87, 149. 3 Daniels’ Ch. 1856. 1 Story’s Eq., Sec 517, 518. It is, indeed, but the ordinary principle, applicable to chancery jurisdiction in general; that when a party is obliged to resort to chancery for one purpose, his case will be retained, until the whole matter is finally disposed of. Dana v. Nelson, 1 Aik. 252. Beardsley v. Knight, 10 Vt. 185. It seems, also, to be a principle of chancery jurisdiction, that when waste has been committed, and the titles of the parties are of an equitable character merely, so that the party has no remedy for the injury at law, a bill will be sustained for an account alone, for the very reason, that there is no remedy at law. Garth v. Cotton, 1 Dick. 183. Landsdown v. Landsdown, 1 Mad. R. 116. Williams v. Dulce of Bolton, 1 Cox 72. 3 P. Wms. 368, n. 2 Ves. [279] 151. Eden, on Injunct. 250. 3 Daniels’ Ch. 1856-7. It is therefore quite immaterial, in this case, whether the plaintiff have a remedy for satisfaction for the waste at law, provided he is entitled to one in equity; for in the former case the account should be decreed, as incident to the injunction; and in the latter, as an independent remedy. I am not by any means prepared to say, that the plaintiff, in this case, would not have a remedy for the waste, at law. It has, indeed, been held in New York, that a mortgagee cannot sustain an action for waste against the mortgagor, before condition broken. Peterson v. Clark, 15 Johns. 205. But in Maine the mortgagee is allowed to maintain trespass against the mortgagor, for any injury to the freehold, inconsistent with the estate of the mortgagor. Smith v. Goodwin, 2 Greenl. 173. Gore v. Jenness, 1 Appleton 53. And in New Hampshire the mortgagee has the like remedy for waste against the mortgagor. Pettengill v. Evans, 5 N. H. 54. Smith v. Moor, 11 N. H. 54. The question in regard to the remedy of a mortgagee at law for waste has recently come before the English courts. It was held by the King’s bench, in Patridge v. Bere, 5 B. & Ald. 604, that the mortgagee might consider the mortgagor as his tenant; and in Hitchman v. Walton, 4 Mees. & Welsb. 409, it was determined, that the plaintiff, a mortgagee, might sustain an action on the case for waste committed by the assignee of the mortgagor, after condition broken, — the plaintiff describing himself, in his declaration, as a reversioner, and the defendant as his tenant; and it was also held, that the plaintiff was entitled to recover, on a count in trover, for the value of fixtures improperly removed from the estate by the defendant. The English doctrine seems to be, that the mortgagee has his election, either to consider the morto-a-gor as his tenant and himself a reversioner, or to treat him as a trespasser, by bringing his action of ejectment. Doe v. Barton, 11 A. & E. 314. In this state it has been held, that after condition broken, and until entry, or action brought, the mortgagor is. tenant to the mortgagee ; and that, after the determination of the tenancy by notice to quit, the mortgagor is liable for rents and profits, — which may be -recovered in ejectment. Wilson v. Hooper, 13 Vt. 653. Stedman v. Gassett, 18 Vt. 346. Lyman v. Mower, 6 Vt. 345, It has also [280] been determined, that the mortgagor, by catting timber after condition broken, is a wrong doer, and acquires no title to it, but that the property remains that of the mortgagee. Morey v. Mc Guire, 4 Vt. 327. Lull v. Matthews, 19 Vt. 322. It would seem but a very short step farther, to adopt the English doctrine, by declaring that the party shall have a legal remedy, for what is already held to be an invasion of his legal rights. But it is unnecessary to decide this question; as we are all agreed, that, if the plaintiff has no legal remedy for the injury sustained by the waste of the defendants, he ought, under the circumstances of this case, to have one in equity. The ground of an injunction against a mortgagor, to restrain waste, is the right of the mortgagee to have the whole benefit of his original security, and to have it preserved unimpaired from the wrongful injury of the mortgagor, so that itmay remain of sufficient value to pay the debt. If there is danger, that the mortgagor will, by such acts, so reduce the value of the security, equity will interpose, to prevent him. If, before the preventive remedy can be applied, he have so reduced the value, the equity is equally strong, that he should make the security good, by satisfaction for the waste he has committed. In this case the parties to the mortgage had notice, by an action of ejectment, that they were considered as trespassers by remaining in possession. They have therefore no excuse for the acts complained of, and we think this bill may be sustained for an account against them. It might not necessarily follow, that persons committing acts by license of the mortgagor, which would be waste in him, would be liable in equity to the mortgagee. But in this case the other defendants, so far as it regards the timber obtained by them, are to be put upon the same footing with, the mortgagor. They took the timber under color of the mortgagor’s pretended right, pending an action of ejectment for the premises, and with actual knowledge also, as we are satisfied from the evidence, of its pendency, and that they were, by taking it, invading the rights of the mortgagee. They do not stand in the position of purchasers in good faith of the mortgagor, but in the light of confederates with him to impair the mortgage security; and standing in that light, they' [281] should account to the mortgagee for the value of his property, which has come to their hands. It is objected to a recovery for waste by a mortgagee, that his estate is contingent; — subject to be defeated by the payment of the mortgage money. The same objection lies to the recovery of damages by the mortgagee in ejectment; with this difference in favor of the remedy for waste, — that the mesne profits are recoverable in the ejectment in all cases; whereas the right to recover for waste may, perhaps, only exist, where the mortgage security is insufficient. If, after redemption by the mortgagor, money should be found in the hands of the mortgagee, received or recovered either for mesne profits or for waste, equity would doubtless compel him to refund. In this case, however, all uncertainty is removed. Before the taking of the account, the equity of redemption had been foreclosed, the land had passed to the mortgagee without redemption, and its value, together with the sum recovered for the waste, is found insufficient to pay the mortgage debt. An objection has been made to the allowance of joint costs against the defendants. Upon this point it is sufficient to say, that no instance is found, in which this court has disturbed a decree of the court of chancery on the question of costs alone; and that the error of the chancellor, in this case, is not sufficiently apparent, to induce us to make a precedent of that kind. The decree of the chancellor is affirmed, with costs, and the case remanded to the court of chancery to carry it into effect.