Majority
p. 501Brumley againt Fanning and Devoe. Sept. 14th.
Headnote
A mortgagor, who has sold his equity of redemption, without taking any security as indemnity against his bond, cannot have an injunction to stay waste against his vendee, on the ground that he will be answerable for what the land may fail to satisfy the mortgage.THIS was a bill for an injunction. On the 2d of April, 1812, the plaintiff purchased a farm of the Westchester Manufacturing Society, and gave a bond and mortgage to secure part of the purchase money. On the 22d of September, 1812, he conveyed the equity of redemption to Fanning, subject to the mortgage, which Fanning undertook to discharge; but the plaintiff took no security, by way of indemnity against the bond. Fanning did not discharge the
p. 502
mortgage, but sold his equity of redemption to Devoe, who, as the bill stated, was committing waste on the premises. A suit was pending to foreclose the equity of redemption, and, also, a suit at law on the bond.
Munro, for the plaintiff.
The plaintiff has parted with his fee, at law, to the mortgagees, and has sold his equity of redemption to Fanning. He, therefore, has no interest remaining in the land, and can have no action concerning it. On what ground, then, can he enjoin the exercise of the rights'of the owner ? He will be answerable for what the land fails towards satisfying the debt; so. must a surety for the insolvency of his principal; but can he control his improvident acts ?
Injunction refused,[1]
(a) (a) Vide Scott v. Wharton, (2 Hen. & Mun. Rep. 25.)