Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1860-12-28
NUMBER %.

be admitted, and it would not follow that
: any right Of the mort gagee had been IL
jured. Bat when It appears that the inju-
ry is such as lessons the security and rem
{ ders it inadequate, then 1t does appear
that he Is injured, and unless he can main
tain an action his intere. may be wantou-
ly and naliciously destroyed with inlpuni-
ty. For it is no answer to say that he
may resort to an injunction it being con
ecded that courts Of equity would restrain
the commission Of such waste as impaired
the security. For it is obvious that ie
might in many cases be committed without
the party knowledge. And the very fact
that courts Of equity will interfere in such
cases to prevent the injury, seems to sus-
tain the right of action for it after it is
committed. For it is difficult to compre-
heGd any reasoning by which the iaterfer-
ence IA the one case could be justified,
which would not at the same time sustain
the right Of action in tie other. Counsel
seemed IL feel the difficulty Of this position
and attempted to explain the action of
courts cf equity by saying that they nijain-
cd the waste, not because tie mortgage
had any legal right il. the land which was
Injured by it, but because it was a viola.
tion of good faith on the part of the mort
'gagor. But surely Courts of equity do
not Interfere to inforce the observance OF
g2sd -aith, where no rights are to be inter
fered with by its violation. And their III
reference at all can only be justified on
the assumption that the mort gagee has no
interest witch entitled him to protection
ard @hieh is injured by such dtstru, ton Of
the value Of the property as leaves it an
inadequate security.
Ahd it would seem a most inexplicabe
anomaly for the law to say to him, through
one Of its tribunals, that. il she could as
certain beforehand that suck an injury was
contemplated it would protect him by the
extraordinary remedy Of injunction and
yet when it was inflicted before he became
aware Of the intention to commit il. to tell
him through another tribunal that he had
no right which had been violated, ana was
entitled to 10 redress. We think there
fore up n principle that he action Should
be sustained
And the authorities Justify the same
conclusion, It is conceded by the coussel
for the respondent that it is supported by
the following: Pen IS NcGro,c, Al, Cam.
III. Gor5ner Us. Heart, So Dedo. 102.
The principal on which the action rests. is
also established in Yates Us, Joyce, II John
1876. which was an action by judgement
creditor for an injury to real estate on
which the judgement was a lien, the debt
or being insolvent and the defendant hav-
ing committed the injury wrong grully with
a view to impair the Plaintiffs security
! The same doctrine is also approved in
Lime IS. Hitchcock, IAN, ,Joha 2I3. See
also Smith Us. Moore II " II. So These
cases net only fully sustain this action. but
their reasoning, particularly that In PeH
Us NcGraw furnishes a satisfactory answer
/ to the cases most strongly relied on by the
respondent The same remarks there made
in regard to Peterson as C.ork Is John
| 2O5. are applicable to Cooper rs Doris
| 18th, Conn. $50. That was an action
where the title to milIssones was involved,
which had been severed from the premises
and sold by the n ortgagor while in posses
sion The case turned upon the title to
the millstones, and the question whether an
action like the present could be sustained
was not involved The language of the
court relied on. relates to the action for
waste, as known at common Law for an in
jury to the property without reference to
the question whethe: the security was in
jurcd,
The right OF action seems entirely clear
waen tie ilj:ry is committed by a mere
trespa ssvr. 1t is not at all impcached by
the fact that the mortgagor might also sus-
tain az action for the same injury 1t ia
frequently the case that different persons
having different interests in property have
each a right of action for an injury to II.
each recovering the damage to his OVID in
terest. The only difficulty that could
arise would be where the injury is commit
ted by the mortgagor or under bis diree-
| ton. He being the owner and having tie
right to treat the property for all purposes
as his own, subject however to tie rights
Of the mortgage, the difficulty would lie
to define precisely what acts should ren-
der him or those acting under bis authori-
ty, liable to an action. But we think that
Pet as NcGra,c establishes the true rule,
and that where All irjary is committed by
the mortgagor or others acting by his d.
reetion. knowing his Insolvency, aud the
existence of the security, and knowing that
the act complained Of viii impair it, the ae-
tion should be sustained
Il