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ber cut down and removed. Exceptions were taken to the conclusions of law, and the points raised for consideration here, as claimed by defendant's counsel, are: 1. That, as matter of law, the defendant is entitled to the judgment; 2. That, by reason of there never having been issued any execution for the deficiency on the sale on said foreclosure, the plaintiff is not entitled to recover; 3. That, defendant having purchased the timber of Shotwell in good faith, and paid for the same before notice of 63 the mortgage, he was entitled to remove such timber from the land; 4. That plaintiff had no interest in the land that would enable him to recover from the defendant for the alleged trespass by way of taking the timber that defendant had purchased, and that the plaintiff had no possessory rights before foreclosure.
The main contention upon the part of defendant is that the facts found by the court below do not warrant a recovery; that in order to enable the plaintiff to recover it must appear that the defendant, at the time of his purchase of the timber, knew that the mortgagor was insolvent, and that the taking of the timber would impair the plaintiff's security; and that, inasmuch as the court found the mortgaged premises to be worth about eight thousand dollars at the time the timber was cut, and there was no finding that defendant knew of Shotwell's insolvency, judgment should have been given for defendant. It is conceded that circumstances may exist under which a mortgagee might recover for the removal of timber or other things from mortgaged premises by another; but it is claimed that such facts are not shown here; that, in order to recover, it must be shown that the purchasing and cutting of the timber was done by the defendant, knowing that the mortgagor was insolvent, and that the mortgagee's security would be impaired.
The findings of fact made by the court amply support the judgment. The mortgage was duly recorded before the sale of the timber was made to the defendant. He had constructive notice of the mortgage, therefore, before the purchase was made by him. Before any timber was cut he had actual notice of the mortgage and of the insolvency of the mortgagor. Notwithstanding such notice he went upon the premises on Sunday with a force of men and did the cutting. He knew at this time that the removal of the timber would impair the security of the 64 mortgagee. The mortgage was a valid encumbrance upon the land, and the
mortgagee had the right to the whole security to meet the amount of his mortgage encumbrance, and could not be compelled to take a part. The facts found by the court below show conclusively that the defendant was not acting in good faith in cutting the timber, and in attempting to remove it. Upon the sale of the premises it was demonstrated that the mortgage security was lessened by the act of the defendant. It is not like some of the cases cited by defendant's counsel, where the property removed had gone into the hands of an innocent purchaser after its removal, and the action was commenced to recover against such third party. Here the party committing the act by which the mortgage security was lessened in value is made the party defendant, and the action is to recover from him the value of what he has taken away. The case falls within the principles laid down in Van Pelt v. McGraw, 4 N. Y. 110, in which the action was permitted to be maintained. Any other rule than this would permit the lands to be stripped of valuable timber, and even of the buildings, to the damage of the mortgagee. The buildings or timber frequently are the main part of the mortgage security; and, if twelve acres of timber could be cut and removed under the circumstances here stated, then the whole might be removed, or all the buildings removed, and the mortgagee would be without remedy. The bill upon which the injunction was allowed was dismissed as to defendant here without prejudice, and the defendant thereupon removed the timber cut. He must answer for its value.
MORTGAGEL'S RIGHTS AND REMEDIES AGAINST IMPAIRMENT OF VALUR of His Security.-Injunrtion. -If a mortgagor in possession is about to remove buildings or fixtures from the mortgaged premises, or is about to cat, or threatens to cut, timber therefrom, or to commit other waste thereon, involving serious or irreparable injury to the land, and thus to render the Becurity inadequate to pay the mortgage delt, the mortgagee is entitled to an injunction against such removal or waste without averring or proving the insolvency of the mortgagor: Fairbank v. Cudworth, 33 Wis. 358; Bunker v. Locke, 15 Wis. 635; Scott v. Webster, 50 Wis. 53; Dorr v. Dud. derar, 88 Ill. 107; Nelson v. Pinegar, 30 Ill. 473; Adams v. Corriston, 7 Minn. 456-464; Emmons v. Hinderer, 24 N. J. Eq. 39; Brady v. Waldron, 2 Johns. Ch. 148; Verner v. Betz, 46 N. J. Eq. 256; 19 Am. St. Rep. 387; Cooper v. Davis, 15 Conn. 556; Coleman v. Smith, 55 Ala. 369; Knarr v. Conaway, 42 Ind. 260. The rule as maintained in these cases is well stated in Sulmon v. Clagett, 3 Blaud, 125-180: “It is also well established that if
the mortgagor, who holds the possession, commits waste, or in any man. ner attempts to diminish the value of the property, or where it consists of personalty, is about to remove it beyond the reach of his creditor, so as to reuder it unequal to the discharge of the debt, or to place it so as not to be forthcoming for the satisfaction of the debt, he may be restrained by injunction, and an injunction for such a purpose may be obtained at any time before the debt becomes due, for otherwise a fraudulent mortgagor might at his pleasure deprive the creditor of all benefit from his mortgage.” To the same effect is Brady v. Waldron, 2 Johns. Ch. 148. This doctrine has been invoked to prevent the mortgagor from removing buildings from the mortgaged premises, and thus impairing the security of the mortgagee: Dorr v. Dulderar, 88 Ill. 107; also to prevent him from removing machinery and other fixtures: Taylor v. Collins, 51 Wis. 123. And quite often to prevent him from cutting and removing timber from the mortgaged prem. ises: Bunker v. Locke, 15 Wis. 635; Fairbank v. Cudworth, 33 Wis. 358; Emmons v. Hinderer, 24 N. J. Eq. 39. In State Savings Bank v. Kercheval, 65 Mo. 682, 27 Am. Rep. 310, it was decided that as between the mort. gagee and mortgagor a frame building erected by the side of a mill for use as an office in connection with the mill is part of the realty, although erected after the mortgage was given, intended to be temporary only, and to be ultimately removed, and not attached to the mill, nor fixed to the ground, but resting upon wooden blocks sitting upon the surface of the earth; and its removal may be enjoined without allegation and proof that such removal would work an irreparable injury to the land, and although the mortgagor who threatens to remove it is a person of undoubted solvency.
It is sufficient to show that there is no adequate remedy by action for damages. “There are inconveniences and perplexities to which one may be subjected by a trespass such as we are now considering for which a jury could not, under the rules of law, fully compensate him, and we think the provision of our statute broad enough, however the law may have been before its enactment, to authorize a resort to injunction in such cases": State Savings Bank v. Kercheval, 65 Mo. 682-689; 27 Am. Rep. 310.
In many cases it is held, however, that a mortgagor in possession cannot be enjoined from committing waste or removing buildings or fixtures from the mortgaged premises unless the acts complained of are shown to be such as to render the security insufficient for the satisfaction of the mortgage debt, or at least of doubtful sufficiency: Moriarity v. Ashworth, 43 Minn. 1; 19 Am. St. Rep. 203; Buckout v, Swift, 27 Cal. 434; 87 Am. Dec. 90; Lavenson v. Standard Soap Co., 80 Cal. 245; 13 Am. St. Rep. 147; Vanderslice v. Knapp, 20 Kan. 647; Coker v. Whitlock, 54 Ala. 180; Harris v. Bannon, 78 Ky. 568. These cases all admit the rule that the mortgagor may be enjoined from committing waste or removing buildings or fixtures from the mortgaged premises in a proper caso. They only add that to entitle the mort. gagee to this remedy he must allege and prove that his security will be rendered insufficient or greatly impaired by such acts, otherwise a court of equity refuses to interfere.
A court of equity does not, unless under very special circumstances, grant an injunction when waste has been committed by the mortgagor in possession to prevent timber which has been cut from being removed. In ordinary cases the remedy by injunction applies only to stay or prevent future waste: Watson v. Hunter, 5 Johns. Ch. 169; 9 Am. Dec. 295. In an action to foreclose a mortgage, after judgment, and while awaiting confirma
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tion of the sale made in pursuance thereof, the court has authority on the petition of the purchaser to restrain the mortgagor from committing waste: Mutual Life Ins. Co. v. Bigler, 79 N. Y. 568. On an application to restrain a mortgagor from cutting timber on a tract of mortgaged land which has been burnt over, if it is shown that the cutting of the burnt timber is to prevent it from rotting, and that cutting it is a permanent benefit to the land, the court will not enjoin the cutting, but will decree that the proceeds of the cut timber be applied on the mortgage debt: Buck v. Getsinger, 5 N. J. Eq. 391. If works for making brick bave been constructed, and clay. beds opened on common property by tenants in common, then, as between a mortyagee of an undivided share or interest in the land and the cotenants in possession it is not waste for the latter to continue the business in the customary way, so as to entitle such mortgagee to an injunction restraining such use of the premises and the removal of the clay, thus suspending the business: Russell v. Merchant's Bunk, 47 Minn, 286; 28 Am. St. Rep. 368.
Trespass for Waste or Removal of Fixtures.-In several of the states the doctrine prevails that after condition in the mortgage broken, the mortgagee may maintain trespass or trover to recover from the morto gagor in possession for the value of timber cut and removed, or for the value of buildings or fixtures removed from the mortgaged premises: Page v. Robinson, 10 Cush. 99; Butler v. Page, 7 Met. 40; 39 Am. Dec. 757; Hapgood v. Blood, 11 Gray, 400; Pettengill v. Evans, 5 N. H. 54; Smith v. Moore, 11 N. H. 55; Storell v. Pike, 2 Me. 387; Learilt v. Eastman, 77 Me. 117; Langdon v. Paul, 22 Vt. 205; Harris v. Haynes, 34 Vt. 220; Hagar v. Brainerd, 44 Vt. 294. The mortgagee may maintain trespass against the mortgagor or a stranger, who, under authority from the mortgagor in posses. sion, removes a building erected on the land by the mortgagor after the execution of the mortgage: Cole v. Stewart, 11 Cush. 181; Hagar v. Branierd, 44 Vt. 291. If there are two mortgages upon the land, and the mortgagor in possession, without the consent of the mortgagees, cuts timber upou the premises, after the first mortgage is discharged, the second mortgagee may maintain trespass for the cutting of the timber: Sanders v. Reed, 12 N. H. 558. If the mortgagee of a reversion of an estate in dower enters after condition broken he may maintain an action against the tenant for life to recover for waste coinmitted before the breach of the condition in the mort. gage: Fay v. Brewer, 3 Pick. 203. This right to maintain trespass against the mortgagor for injury to the mortgaged premises inures to the assignee of the mortgagee: Linscott v. Wecks, 72 Me. 506; and if the assignee of the mortgagor removes fixtures from the land, though erected by him after the execution of the mortgage, the assignee of the mortgagee may maintain an action of trespass against him for their value: Smith v. Goodwin, 2 Me. 173. A mortgagee of land may maintain an action of tort in the nature of tres. pass or trover against a third person who buys of the mortgagor in posses. sion wood and timber wrongfully cut by the latter from the mortgaged land: Searle v. Sawyer, 127 Mass. 491; 34 Am. Rep. 423; Atkinson v. Hewett, 63 Wis. 396; Gore v. Jenness, 19 Me. 53; Frothingham v. McKusick, 24 Me. 403. The inortgageo may maintain an action in the nature of trover against a person whose servant unlawfully takes turf from the mortgaged land, and uses it in his master's business: Wilbur v. Moulton, 127 Mass. 509; and gen. erally a mortgagee out of possession may maintain. an action of trespass against a stranger for an injury to the mortgaged premises: Leavitt v. Eartmun, 77 Me. 117; James v. City of Worcester, 141 Mass. 361. We apprehend the general rule to be that until condition broken in the mortgage, and a
forfeiture thereof, the mortgagee has no such property in timber cut, or fixtures removed from the mortgaged premises, as entitles him to maintain trespass or trover against the mortgagor or other person who removes such property: Peterson v. Clark, 15 Johus. 205; Angier v. Agnew, 98 Pa. St. 587; 42 Am. Rep. 624; Pueblo etc. R. R. Co. v. Beshoar, 8 Col. 32. Trespass by the mortgagee for removing a building from the mortgaged premises cannot be maintained unless the mortgagee can show a deficiency upon a regular and legal foreclosure and sale: Taylor v. McConnell, 53 Mich. 587; Tomlinson v. Thompson, 27 Kan. 70. The inortgagor is not liable in tres. pass or trover to the mortgagee for the value of timber, cut or removed after condition in the mortgage broken, if the mortgagor has a license, express or implied, to remove such timber: Smith v. Moore, 11 N. H. 55; Page v. Robinson, 10 Cush. 99; Searle v, Sawyer, 127 Mass. 491; 34 Am. Rep. 425; Ingell v, Fay, 112 Mass. 451. A mortgagor in possession may, either before or after condition in the mortgage broken, cut firewood and timber for repairs, for use on the premises, and for other ordinary uses according to well-known and existing usages of good husbandry, without being liable therefor in trespass to the mortgagee. It is ouly when the act of the mortgagor in cutting the timber is wrongful, and impairs the security of the mortgagee, that he is liable to himn iu trespass or trover: Hapgood v. Blooil, 11 Gray, 400; Wright v. Lake, 30 Vt. 206; Judkins v., Woodman, 81 Me. 351.
Replevin.-- In some jurisdictions the rule is maintained that the mortgages may maintain replevin against the mortgagor in possession, or a purchaser from bim with notice, actual or constructive, of the lief of the mortgage, for timber cut or fixtures or buildings removed from the mortgaged prem. ises, whereby the mortgage security is impaired and its value dimninished: Waterman v. Matteson, 4 R. I. 539; Hoskin v. Woodward, 45 Pa. St. 42; Mosher v. Vehue, 77 Me. 169; In re Bruce, 9 Ben. 236. If a house has been severed from the mortgaged premises without the consent of the mortgagee, he may maintain replevin against a stranger at any time before it becomes attached to and forms part of other realty, and if the building is again severed from such other realty to which it has attached before the morto gage is satisfied or discharged, the mortgagee may regain it by the action of replevin: Dorr v. Dudderar, 88 IlI. 107. In other jurisdictions, however, this doctrine is explicitly denied, and it agserted that a mortgages whose debt is due, but who has not entered into possession, cannot maintain replevin for a specific chattel or building which the mortgagor or his assigns have severed and removed from the realty, and which before severance was a fixture or part of the realty, and subject to the mortgage: Kirchner v. Miller, 39 N. J. Eq. 355; Adams v. Corriston, 7 Minn. 456; Clark v. Reyburn, 1 Kan. 281. These cases assume that the removal of fixtures, timber, or buildings from the mortgaged premises, while in the possession of the mort. gagor, is one of the risks assumed by the mortgagee, and that, although his security is thereby impaired, his only remedy is by injunction to restrain such removal before the act is accomplished: Kircher v. Schalk, 39 N. J. L. 335-339; Wilson v. Maltby, 59 N. Y. 126. When the mortgagor is entitled to possession after foreclosure, and until the expiration of the time for redemption, the purchaser at the foreclosure sale is not entitled to the possession of logs cut on the land after the sale, and cannot bring re. plevin for them: Berthold v. Holman, 12 Minn. 335; 93 Am. Dec. 233.
Damages for Impairment of Security.—That the inortgagee may maintain an action and recover damages against one, whether the mortgagor in pos