Year: 1860

We give below decision made by the
Supreme Court of this State in the case oi
Daniel Jones IS VIM. Costigan Ct. a! in
which Is presented the question as to
whether mortgagor can be made to re-
sPond IN damages to mortgage for in
jury to mortgaged property after Judgment
of foreclosure has been rendered and no.
tiee of sale given. Judge Orton held On
the trial. in the Circuit at Jefferson, that
an action would not lie and nonsuited
the Plaintiff The Supreme Court reyer-
ses that decision and orders the case back
for new trial. The opinion is written
By Justice Paine and is as follows


The question presented in this case is
whether the owner of mortgage upon
land, who has obtained judgment of fore
closure and sale can maintain an action for
an injury committed upon the premises be
fore the sale which impairs the security
aud prevents the full amount of the debt
from being realized, the mortgagor be-
ing insolveut ard which was committed
wrong1ully aad fraudulently with the in
teat to itjure the holder of the mortgage
Such is substantially the case made by the
complaint, and the court below dismissed
it as not stating facts sufficient to consti-
] oo,,-o of


It was contended with much ingenuity
by the Counsel for the respondent, that
the action is not maintainable. And his
conclusion was based upon what he claim
ed to be the result of the American author
tiles, that Is, that a mortgage has no in
tere t in the land and therefore cannot
support an action for an injury to it, But
We thi.k k this is making an extreme appli-
cation Of the doctrine alluded to, and one
which ought not to be sustained. It may
be conceded that the mortgagor is Tie own
er of the fee, and that the mortgage has
only a lien or ineumbrance on the land
In progressing from the common law rule
that the mort gee was tie owner Of the
legal tide, and the mortgagor had on
ly an equitable interest remaining, 10 the
| equitable rule that the mortgagor is to be
considered as the owner, and the mort
gagee as having a mere security, there has
/ been much confusion and uncertainty as to
the precise character of the interests Of
/ both. But it will be observed that these
| questions have generally arisen it settling
other collateral questions arising cut Of the
existence of the mortgage, such as the de-
scent of the legal title, rights Of dover
or rights Of execution creditors against the
mort gagor or mortgage. And the cor
| clusion which has been arrived at that the
mortgagor is to be regarded as the owner
of the land. has not been based upon any
diminutiou Of the rights of the mortgage,
but upon the assumption that this conclu-
sion was entirely consistent with the pres
ervation of all his rights according to the
real intent Of the contract, which was
merely tLat he should have a security up
on the land for his debt. When therefore
it is said that the mortgage has no inter
est in the land, this general language must
be held to mean that the mortgagor is con-
sidered, for most purposes, as the owner,
subject however to the right of the mort
gagee to preserve and enforce lis lien
Aud this right seems to US all that should
be acquired to sustain this action. For it
is the boast of the law that there is DO
right without a remedy. And for the
purpose of practically carrying cut this
maxim, the action on the case at common
law, was devised and held in reserve to re-
dress those wrongs which did not find
remedy in any of the established forms Of
action. The right here is conceded. The
mortgage has valid incumbrance on the
land, which gives him the legal right to
subject 1t to tie payment Of his debit
The wrong must also be conceded for the
purposes Of the case. For it is alleged that
the defendants fraudulently and wrongfully
and with intent to injure the plaintiffs, d.
minished the value f the land by remov-
ing buildings and destroying trees, SO that





the plaintiff diminished the value of the
land by removing building and destroying
trees. so that the plaintiff was prevented
from suLjecting tie whole land and all It's
value to the payment Of bis debt, as he
had legal right to do. Now if there is
no remedy for this the law boasts Of what
it does not perform. The right is clear.
aud is a legal right The wrong is palpa
bic, but there is no redress If there was
any thing in the nature of the case that
made such redress impractcablc, of course
that would be a good answer, for the Law
neither requires, nor undertakes to per
form impossibilities But when the facts
present what would have been properly an
action on the case, and the redress is en-
tirely practicable in such an action; re
think that justice ought not to fail by an
extreme application Of the doctrine rela-