Nelson v. Pinegar

Breese, J. It is objected against the decree in this case, that no proof was exhibited of the mortgage and decree, and the subsequent proceedings under it. The answer of all the defendants except Brebner, the mortgagor, neither admitted nor denied the allegations of the bill in these particulars, and the rule is well settled in this court, that the material allegations of a bill in chancery, not admitted or denied by the answer, must be proved by the complainant. This rule will be applied in all proper cases, but this is not one demanding its application. The complainant claims the land as mortgagee in fee of Brebner, one of the defendants, and the execution of the mortgage and its forfeiture are fully admitted by him. He was the only person having an interest in the land, and he admits the sale and conveyance of it. This mortgage, and the proceedings under it in chancery, whereby it was foreclosed and the premises sold, are made exhibits in the bill by reference. They are a part of the files and records of the court that heard the cause, and were examined and considered by the court, as the decree expressly states. For the purposes of this case, the allegations of the complainant were sufficiently proved. But if the proceedings to foreclose were not proved, still a case is made out against the defendants by the exhibit of the mortgage alone. The complainant, as mortgagee of the land, was the owner of the fee as against the mortgagor and all claiming under him. He had they ms in re as well as ad rem, and being so, is entitled to all the rights and remedies which the law gives to such an owner. Delahay v. Clement, 3 Scam. 202; Vansant v. Almon, 23 Ill. 33; Carroll v. Ballance, 26 Ill. 17. That the owner of land has a right to an injunction to stay waste being committed upon it, it is unnecessary to argue. A mortgagee of the fee, has the same right. Robinson v. Litton, 3 Atkins, 209; Brady v Waldron, 2 Johns. Ch. 148, and this, in a State where courts do not hold the mortgagee to be the owner of the fee. If but a mere security for the debt, an injunction is allowed to prevent a deterioration of that security. The same doctrine obtains in Connecticut. Cooper v. Davis, 15 Conn. 561. And in Maryland. Salmon v. Claggett, 3 Bland Ch. R. 126; and there, when the mortgage debt was not due. Murdoch's Case, 2 id. 461. It is, on the whole, doubtful, if the mortgagee, before possession taken, has any other remedy except by injunction, to prevent waste. On the other facts, the proof was sufficient. The decree is affirmed. Decree affirmed.