Bank of Chenango v. Cox

The Changellok. The question presented on this motion is, whether an injunction should be granted at the suit of the- mortgagee, to prevent the removal from the mortgaged premises of timber trees cut down in waste of the security before the service oí' the injunction. Such injunctions will, sometimes, be granted, but only under special circumstances. Watson v. Hunter, 5 Johns. Ch. R. 169; Spear v. Cutter, 5 Barb. 486 ; Johnson v. White, 11 Barb. 194; Winship v. Pitts, 3 Paige 259; Ensign v. Colburn, 11 Paige 503; Emmons v. Hinderer, 9 C. E. Green 39; High on Injunctions, § 428. Where the person against whom relief must be sought for the waste committed, is insolvent, or where no redress can be obtained at law, or in equity, if the removal be permitted, the injunction may be granted. And so, too”, where there is fraud. But, where, as in the case before me, there is no allegation of insolvency, nor any evidence of fraud, nor any circumstance [453] leading to the conclusion that no redress at law, or in equity, can be had, unless it be by injunction, and an account is prayed in the bill from the person who has committed the "vaste, the injunction should not bo granted. Watson v. Hunter, supra. A statement contained in one of the affidavits appended to the bill is relied on as evidence of fraud. But that statement is merely, that Dnnster, against whom the injunction was prayed and issued, endeavored, by his own personal application, to buy the trees standing on the property from Cox, who then owned the premises, but was unsuccessful, and he subsequently bought them through a real estate broker, lor the price of §125. The affidavit further states, that the felling of the trees cut down by Dnnster, has injured the property to the amount of §1000 or more. There is, in these statements, no evidence of fraud on the part of Dnnster, but the contrary. He appears to have fairly bought the trees, making the best bargain he could for them. There is no room for any suspicion of collusion between him and Cox. The injunction will be modified, so as lo be confined to the limber standing or growing at the time of service of the injunction.