Jefferson County NyArchives Court.....Hurst, Henry Vs. Charles Elliott 1889
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Source: Reports Of Cases - New York
Written: 1889

Fourth Department, May Term, 1889.

HENRY J. HURST, Appellant, v. CHARLES ELLIOTT and Others, Respondents.

Sale by a mortgagor of his equity of redemption — injunction to stay waste 
committed on the mortgaged premises by his vendee, who has assumed payment of 
the mortgage thereon.

On December 13, 1886, the plaintiff sold certain premises to the defendants 
Charles and Eva Elliott for $400, of which $100 was paid by the sale and 
delivery to the plaintiff of certain articles of personal property, and the 
balance by their assuming and agreeing to pay a mortgage given by the plaintiff 
to secure a portion of the purchase-price paid by him for the property. As an 
inducement to the Elliotts to purchase the plaintiff stated that if they would 
buy the said premises they could cut the trees standing thereon and convert them 
into fire-wood.

In an action, brought to restrain the defendants by injunction from removing, 
selling or in any way interfering with the wood and timber which had been cut by 
them on the said premises, and to have it sold and the proceeds applied on said 
mortgage:

Held, that as there was an express oral license to cut the trees in question, 
given by the plaintiff to the defendants Elliott, the plaintiff thereby waived 
any right he might otherwise have had to restrain their doing so.

That as the defendants had relied upon such license in making the purchase, and 
had acted upon it in cutting the trees, a court of equity would not issue its 
injunction to aid the plaintiff in restraining an act on the defendants' part to 
which he had expressly consented.

Quoere, whether a mortgagor, who has sold his equity of redemption in the 
mortgaged premises without taking any indemnity against his liability upon his 
bond, can have an injunction against his vendee to stay waste on the ground that 
he would be answerable for the amount of the mortgage which the proceeds of sale 
of the land might fail to satisfy.

Appeal from a judgment, entered in the office of the clerk of the county of 
Jefferson on the 18th day of January, 1888, dismissing the plaintiff's complaint 
upon a trial had at the Jefferson County Special Term by the court without a 
jury.

Wayland F. Ford, for the appellant.

Brown & Morse, for the respondents.

Martin, J.:

On the 17th day of April, 1885, the plaintiff purchased the premises described 
in the complaint, and gave his bond and a mortgage thereon to secure the payment 
of $300 of the purchase-price, which was payable in seven equal payments, with 
annual interest, the first payment of principal to become due April 22, 1887. 
This mortgage was assigned to and held by one Gilderoy Lord.

On December 18, 1886, the plaintiff sold the premises to the defendants, Charles 
and Eva Elliott, for $400. One hundred dollars was paid by their selling and 
delivering to the plaintiff certain articles of personal property, and the 
remaining $300 by their assuming and agreeing to pay the aforesaid mortgage as 
the same should become due. When the agreement to sell said premises was entered 
into between the plaintiff and defendants Elliott, and, as an inducement to the 
Elliotts to purchase, the plaintiff stated to them that if they should buy said 
premises they could cut the trees standing thereon and convert them into fire-
wood, etc. After the purchase of the premises by the defendants Elliott they 
took possession and commenced cutting the trees thereon and converted them into 
fire-wood, which they removed from the premises and sold a portion of it to some 
of the defendants. The defendants Elliott also sold some of the trees standing 
on a portion of the premises to other defendants, who cut them and converted 
them into fire-wood, while other defendants assisted in cutting such trees as 
the employees and agents of the purchaser. The premises with the trees cut and 
removed therefrom were inadequate security for the amount unpaid on said 
mortgage. This action was brought to restrain the defendants by injunction from 
removing, selling, or in anyway interfering with the wood and timber which had 
been cut on said premises, and to have it sold and the proceeds applied on said 
mortgage.

On the trial the court found the foregoing facts, and held:
 
1. That the plaintiff, after having thus conveyed the premises to the defendants 
Elliott, was not in a position, at the commencement of this action, where he 
could restrain the commission of waste on the mortgage premises, as he had 
neither paid the mortgage debt nor been in any manner charged therewith. 2. That 
the plaintiff having consented that the defendants might cut and remove said 
wood, and the defendants having acted upon the faith thereof, the plaintiff was 
estopped from interposing any right or claim thereto.

In the case of Brumley v. Fanning (1 Johns. Ch. 501) it was held that a 
mortgagor who had sold his equity of redemption without taking any security or 
indemnity against his bond, could not have an injunction to stay waste against 
his vendee on the ground that he would be answerable for what the land might 
fail to satisfy of the mortgage. If such is the law, then it is clear that the 
plaintiff could not maintain this action, and the plaintiff's complaint was 
properly dismissed on that ground, but we do not deem it necessary to determine 
that question.

The evidence clearly shows that the plaintiff, as an inducement to the 
defendants Elliott to purchase the mortgage premises, gave his express consent 
that they might cut the timber thereon if they made such purchase, and expressly 
stated to them that they could cut as much as they had a mind to. Under this 
proof we think the court properly held that the plaintiff could not maintain 
this action to restrain the defendants Elliott, and those claiming under them, 
from removing the wood which had been cut by them in pursuance of this license 
or agreement. Here was an express license to cut the trees in question, given by 
the plaintiff to the defendants Elliott, and a consequent waiver by the 
plaintiff of any right he might otherwise have had to restrain their doing so. 
The defendants having relied upon such license in making the purchase, and acted 
upon it in cutting the trees, a court of equity ought not to issue its 
injunction to aid the plaintiff in restraining an act to which he had expressly 
consented, nor in enforcing a right which he had expressly waived. (Jones on 
Mortgages, § 692.)

We think the case was properly disposed of at the Special Term, and that the 
judgment should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgment and order affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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