#### Marsh *vs*Current.

Error to the Bourbon Circuit.

Case.

*Case*10†.

The case stated*

Casé, *Jurisdiction. Waste.*

*June*17.

J.odge Breck

delivered tlie opinion of the Court.

Marsh and Current agreed to exchange farms, and in February, 1843, entered into a written agreement evidencing the terms of their contract. Among other things it was stipulated that each should deliver to the other possession of their respective farms, on the first of March following, and on the third of March, 1844, deeds were to be mutually executed. Current being unable to deliver possession according to the contract of the entire farm or tract which he had sold and exchanged to Marsh, in consequence of an unexpired lease upon a portion of it, agreed in consideration thereof, to allow Marsh to continue in possession of the farm, , which he had sold and exchanged to Current, till the 1st of March, 1844; and this supplemental agreement was also evidenced by writing between the parties, on the 6th March, 1843.

In March, 1844, each party obtained possession and a conveyance’of their respective farms dr tracts of land.

In 1845, Current commenced this action on the case, against Marsh, alledging in his declaration the commis*494sjon by him, of various acts of waste and destruction* upon the land which he had sold and conveyed to the-plaintiff, and while the same was in the possession of the defendant, and subsequent to the contract of sale and exchange, and before the delivery of the possession thereof and the conveyance *to the*plaintiff.

M. and c. ex-andTy written contract mutual-]y agreed to deliver possession dayf whiehUlis veyance”passed" between the con-delivery of posmiued"’ ^waste" &c. — Held that C. might maintain an action on injury,Snof°coveemadehaviafainst waste.

A demurrer to the declaration having been overruled, the defendant filed a plea of not guilty, and a verdict and judgment.having been rendered for the plaintiff, and a motion in arrest of judgment overruled, the defendant has brought the case to' this Court for revision.

Whether the plaintiff was entitled to maintain this-action for the alledged injury, is the only question for consideration.

Neither of the agreements between the parties contained any express covenant _lhat waste was not to be committed upon the premises, nor as to the manner 0f treating them during the period Marsh was allowed to . ? . ° * . . .. , continue in possession. But notwithstanding the agreements were silent upon the subject, Marsh was under no -^ess mora^ or legal obligation to do no more injury to the premises than would result from their cultivation and enjoyment, according to the general rules or good husband-*TV>*°r m other words, to commit no waste, than if there bad been an express covenant to that effect. The law 1 ■ . created and imposed upon him this obligation,, and the violation of it was a breach of duty and good faith, for w^ich he was responsible. The declaration alledges injuries done to the premises by the defendant, for which, in this view of the case, he was clearly liable, and the only enquiry -is, whether the plaintiff was entitled to relief in this form of action.

It is insisted on the part of the defendant, now plaintiff in error, that although injuries had been committed for which the plaintiff was entitled to redress, yet that his subsequent acceptance of the title and possession was a waiver and forfeiture of bis claim. We perceive no reason or principle upon which this position can be sustained. Had there been an express covenant not to commit waste, the performance of other covenants .in regard to the possession and title, would certainly have been no *495satisfaction of it, nor have constituted a bar to an action forth© breach of it. But the commission of waste, as we have seen, was a violation of an implied obligation, a breach of duty, for which the defendant was equally liable as upon an express undertaking. The acceptance of the title and possession would no more relieve the defendant from liability in the one case than the other. It is true the injury might have been of such a character as to justify the plaintiff in refusing to accept the title and *■the*possession, and in claiming a rescission of the contract. Pie might also, under particular circumstances, have obtained, in a Court of Equity, for the injury sustained, a reduction out of any unpaid portion of the purchase money. In the last instance, his claim for relief would not be affected by the mere acceptance of the title ■and possession.

But it is contended that the plaintiff was entitled to no relief except in equity. That the relation between the .parties, when the waste was committed, wasthatof trustee and *cestui que trust,*and that the latter can only obtain relief against the former in equity. Such is no ■doubt the general rule, but there are exceptions to it, and we think it has no application to this case. The parties constructively only, occupied that attitude, and when this suit was instituted, no such relation existed. It may be true that while the plaintiff had only an equitable title, he could not maintain his action at law. His ■claim for the title and possession being by executory contract, it might never be performed, and in that case he would sustain no injury by the waste committed. So the mortgagee, as held in *Rotan vs Fletcher,*(15 *Johnsons R.*205,) is not entitled to his action at law before a forfet■ure of the mortgage, for waste committed by the mortgagor, as his interest is contingent and may be defeated by the payment of the money secured by the mortgage. So, he that hath the remainder for *life*only, is not entitled to sue for waste; since his interest may never- perhaps come into posséssion, and then he has suffered no injury. Equity, however, even before the forfieture of the mortgage will restrain the mortgagee from the commission of waste, and so it no doubt would the vendor before he *496.conveys the title. But it by no means follows that the plaintiff was not entitled to relief at law after he obtained the title and possession, because he was not'before. The reason or objection has then ceased. His title is perfected and there is no longer any doubt or uncertainty, whether he will *be*or is *injured by*the waste committed. The injury is already sustained and we see no reason why the defendant, the wrong doer, should not be held responsible for it, and in this form of action. Although it might not have been the only remedy, it very clearly appears to us to be an appropriate one, and we should not hesitate to sustain it, unless controlled by some arbitrary rule of law, of which we are not aware.

*Davis and Martin*for plaintiff: *Williams*for defendant.

The judgment is, therefore, affirmed.