at the time of executing the mortgage, free from the claims of all subsequent purchasers and encumbrancers. It is obvious that the proceeding closely resembles the ordinary equitable foreclosure. But the only necessary party is the mortgagor, or his executor or administrator. Subsequent purchasers and encumbrancers need not be made parties in order to cut off their equity of redemption. Mevey's Appeal, 4 Pa. St. 80; Hartman v. Ogborn, 54 Pa. St. 120; Chickering v. Failes, 26 Ill. 507; Dennison v. Allen, 4 Ohio 495. In this respect the foreclosure by scire facias obviously resembles the foreclosure by sale under a power, rather than that by equitable suit.

For a discussion of the procedure by scire facias in the several states in which it is permitted, see Jones, Mortgages, §§ 1328, 1333, 1350, 1355.

CHAPTER VIII.

INJUNCTION AND ACCOUNT.

MORIARTY v. ASHWORTH.

SUPREME COURT OF MINNESOTA, 1890.
43 Minn. 1.

DICKINSON, J. This is an action to restrain the defendant from quarrying and disposing of granite rock from land mortgaged by the defendant to the plaintiff, in April, 1887, to secure a debt of $1,000, to become due two years after that time. The land is of the area of four acres. Its principal value is in the granite quarry thereon. The removal of this material depreciates the value of the land to the extent of such removal; but the quarrying by the defendant has not been carried on to such an extent as to so far impair the value of the land as to render it insufficient security for the plaintiff's debt, nor has he threatened to do so. The court, finding the facts to be substantially as above stated, considered that the plaintiff was not entitled to an injunction. On this appeal we are only to consider whether, upon the facts found the legal conclusion of the court was right.

While some authority may be found in support of the claim of the appellant that a mortgagee is entitled to an injunction restraining any acts of waste by a mortgagor in possession which may diminish the value of the mortgaged property, yet the great weight of authority, both in England and in this country, is to the effect that equity will not interfere in such cases unless the acts complained of are such as may render the security insufficient for the satisfaction of the debt, or of doubtful efficiency. King v. Smith, 2 Hare, 239; Humphreys v. Harrison, 1 Jac. & W. 581; Hippesley v. Spencer, 5 Madd. 422; Harper v. Aplin, 54 Law T. (N. S.) 383; Coker v. Whitlock, 54 Ala. 180; Scott v. Wharton, 2 Hen. & M. (Va.) 25; Buckout v. Swift, 27 Cal. 433; Vanderslice v. Knapp, 20 Kan. 647; Harris v. Bannon, 78 Ky. 568; Van Wyck v. Alliger, 6 Barb. 507, 511; Snell, Eq. 304; 1 Wats. Comp. Eq. 746; 2 Story, Eq. Jur. Par. 915; High, Inj. (2d Ed.) Pars. 693, 694; Bisp. Eq. (4th Ed.) Par. 433; 1 Jones, Mortg. (4th Ed.) Par. 684; 1 Lead. Cas. Eq. (4th Am. Ed.) 992, 1021; Kerr, Inj. (2d Amer. Ed.) 84. In numerous other cases we find that the

courts, in stating the grounds upon which equity will interfere, seem to regard it as a necessary condition that the sufficiency of the security be threatened. See Cooper v. Davis, 15 Conn. 556; Gray v. Baldwin, 8 Blackf. 164; Hastings v. Perry, 20 Vt. 272; Fairbank v. Cudworth, 33 Wis. 358. From the proposition which we have stated as an established principle of equity, it is not to be understood that equity will not interfere unless the acts threatened are such as may reduce the value of the mortgaged property below the amount of the debt. On the contrary, as was considered in King v. Smith, 2 Hare, 239, we think that the mortgagee is entitled to be protected from acts of waste which would so far impair the value of the property as to render the security of doubtful sufficiency. He is entitled to have the mortgaged property preserved as sufficient security for the payment of his debt, and it is not enough that its value may be barely equal to the debt. That would not ordinarily be deemed sufficient as security to one whose purpose is to secure payment, and not to become a purchaser of the property at its market value. And not only must it be considered that the mortgage is held to secure payment of the debt, and not for the purpose of converting the mortgagee into a purchaser, but that if the debt is not yet mature it is to be considered whether, during the time which may elapse before maturity, the present value of the property may not become depreciated from causes not now known. It does not appear that the court in this case failed to regard these considerations.1

Judgment affirmed.

EAKIN, J., in HUGHES V. JOHNSON, 38 Ark. 285, 296 (1881).

It is further, a well settled principle in equity, that one who has an interest in a security may advance what is fairly necessary to its preservation, and may retain the advances out of the proceeds before crediting any portion of his debt. There can at least be no doubt of that, where such advances are made by the consent of all parties interested in the property or fund. That was a strong element in the case of Bell v. Radcliff, [32 Ark. 645]. This is not upon the idea that the security of the mortgage is thereby extended to other advances, but rather upon the consideration that the proceeds of the property have been diminished by the expenses of preservation.

It remains, by way of preliminary remark, to allude again to the fact that the money, concerning which the questions of application arise, was the fruit of the mortgaged property. Although, as has been said, all parties might agree to have it applied to the unsecured items, yet as that is a diversion from the original intention, the onus of showing such agreement is upon the party claiming it. 1 Compare, Morse v. Whitcher, 64 N. H. 590; Youle v. Richards, 1 N. J. Eq. 534.

In the light of these principles the finding of the facts by the chancellor, and the decree as to the law, must be reviewed.

The cause was heard alone upon the pleadings, and the depositions of the parties, Bell, Moss and Hughes. The decree recited, as its basis, the execution of the mortgage upon the land and the crop of 1876, and that it was to enable the mortgagor to raise a crop, and its assignment to complainant on the twenty-seventh of June, 1876. That Moss & Bell continued to furnish the supplies required by the mortgage; that on the first of November, 1876, the full amount of supplies named in the mortgage not being sufficient to complete the crop and gather it, the mortgagees furnished additional supplies at Hughes' request; that on the first of January, 1877, they amounted to $1,953, and had been necessary to gather and protect the property from loss. Further that the crop had not been delivered and sold until the first of January, 1877; that it was after that date argeed that Hughes should continue to purchase goods on account, and that the cotton received should be applied first to the payment of said account, and the balance to the credit of the mortgage account; and that Moss & Bell did so apply the cotton received after the first of January. Further: That the goods furnished up to the fifth of March, 1877, were so paid for by cotton received and sold up to that time, leaving, by this mode of statement, then due upon the mortgage of principal and interest, the sum of $759.30.

For this amount a decree was rendered, with the usual order of sale for foreclosure. As to the items of account after the fifth of March, 1877, the bill was dismissed without prejudice.

If the recitals are sustained by the evidence, the decree was correct, in so far as it holds that the payments might be applied to the advances made after the mortgage was due, and beyond its

amount.

[His honor proceeded to examine the evidence and found that the sums advanced in excess of the mortgage prior to January 1, 1877, being cash to hire pickers and to purchase a gin, were properly credited to the mortgagee, but that the later advances were not of this character.]

DAVIS v. WINN.

SUPREME COURT OF MASSACHUSETTS, 1861.
2 Allen 111.

Bill in equity to redeem land from a mortgage, given to the defendant by Moses Cummings, dated April 1, 1840, to secure the sum of $1,000, and interest. Cummings died September 10, 1840,

and the plaintiff became owner of the equity of redemption by several deeds from his heirs at law.

HOAR, J.

*

The other point presented by the report is equally free from difficulty. The defendant, being in possession of the mortgaged estate under his mortgage, after the death of the mortgagor, was compelled to pay a prior mortgage, in order to protect his title. He had therefore, as against the mortgagor and those claiming under him, a right to indemnify himself for this payment out of the mortgaged estate. But the prior mortgagee discharged his mortgage upon the record, instead of assigning it; and the plaintiff claims to stand in the position of a bona fide purchaser without notice, and contends that he should not be obliged to pay a mortgage which the record showed to be discharged and satisfied, at the time he purchased the equity. There is certainly some force in the reasoning by which this position is supported; but, without intending to give an opinion upon it, we think the facts disclosed by the report render it of no avail. The whole amount which the defendant now asks to be allowed to him is less than the amount of his mortgage and interest, after deducting what was received from the estate of Cummings. The defendant has been charged with a large amount of rents and profits of the estate, which accrued before the plaintiff's title was acquired. If the plaintiff bought, trusting to the record, there was nothing on the record to show that anything should be deducted from the amount due on the defendant's mortgage on account of these rents and profits. Up to the year 1855, they were matter of account with the heirs of Cummings; against whom the right to apply them to reimburse the defendant for the sum paid to redeem the prior mortgage was indisputable. As they were more than sufficient to pay that sum, as no account had been settled by which they were otherwise applied, and as the plaintiff will not, in any event, be called upon to pay more than appeared by the record to be due, it is equitable that they should be so applied now.

The result is, that the plaintiff will have a decree that he may redeem upon paying the amount which the master's report shows to be due upon the mortgage, with interest and costs, subject to an account for rents and profits since the date of the report. Decree accordingly.2

2 In Miller v. Whittier, 36 Maine 577, the mortgagee was also allowed the expenses of maintaining a suit to redeem a prior mortgage.

See also Harper v. Ely, 70 Ill. 581; Comstock v. Michael, 17 Nebr. 288; Riddle v. Bowman, 27 N. H. 236; Clark v. Smith, 1 N. J. Eq. 122. Compare, Magilton v. Holbert, 52 Hun (N. Y.) 444; Cason v. Connor, 83 Tex. 26.