Kane v. Vanderburgh — 1 Johns. Ch. 11

Majority

p. 11

Kane against Vanderburgh and others.

April 26th.

Headnote

An injunction to stay waste will be granted,though there is no suit pending, and though no action can be maintained against the tenant at law.

THE bill, which was for an injunction to stay waste, stated, that Abraham Tenbroeck, being seised in fee of the premises, devised them in fee to his daughter, Margaret, who devised them to her sister, Elizabeth Schuyler, for life, remainder to her children living at her death, and in default of such children, remainder to the children of her brother, Dirclc Tenbroeck, in fee. After the death of the two testators, Elizabeth Schuyler, and her husband, released her interest to the plaintiff. Elizabeth is still living, but without issue ; and the defendants are tenants from year to year. The bill further stated, that actions of ejectment were intended to be brought against the defendants, who had been served with notices to quit, which would expire on the 1st May next; and it charged, also, “ that the defendants, by themselves, and others hired by them, are daily committing great waste on the premises, by cutting down large quantities of valuable wood and timber, for sale, and carrying the same to market, to the great and irreparable injury of the land, and of the estate of the plaintiff.”

No answer had yet been put in to the bill,

Woodworth, for the defendants,

now moved to dissolve

the injunction, for want of sufficient matter stated in the bill.

Henry, contra.

The waste is explicitly and sufficiently charged in the bill to support the injunction. Nor is it essential to this remedy that there should be an actual Us

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pendens in a court of law. There are numerous cases i» chancery, as Lord Hardwicke has frequently observed, (P errot v. Perrot, 3 Atk. 94. Robinson v. Litton, 3 Atk. 210. Farrant v. Lovell, 3 Atk. 723. Garth v. Cotton, 1 Ves. 556.,) in which the court has interposed to stay waste, by the tenant, where no action can be maintained against him at law. Thus, where there is lessee for life, .remainder for life, remainder in fee; the mesne remainder-man cannot bring waste, nor the remainder-man in fee, but chancery will interpose and stay the waste.

So equity will, in many cases, restrain waste, though the lease contain the clause without impeachment of waste, and which takes away the remedy at law, as where this power is exercised in an unreasonablemanner, and against conscience. (Aston v. Aston, 1 Ves. 264. Strathmore v. Bowes, 2 Bro. 88.)

Chancery goes greater lengths than the courts of law in staying waste. It is a wholesome jurisdiction, tobe liberally exercised in the prevention of irreparable injury, and depends on much latitude of discretion in the court.

The tenant for life is here suffering injury to his own interest, and he, by his tenants, is doing great injury to the inheritance, which it is his duty to prevent. He is bound to stop the mischief, or be responsible himself. To suppose that an ejectment must be actually commenced before the injunction can issue, is certainly an error; this would be placing the operation of waste beyond the reach of control during the period of the six months’ notice. Indeed, the notice to quit-may be considered as the commencement of an adverse proceeding at law, and sufficient to bring the case within the spirit of the decision in Lathrop v. Marsh, (5 Ves. 259.)

Motion denied, with costs.