Opinion
February 11, 1822.
Injunction bill to stay waste. Injunction ordered.
This was a bill brought by mortgagee etc. On May 24, 1820, Aaron Justis and Sarah, his wife, bargained and sold to Samuel Eastburn, in consideration of $13,860, a tract of land situate in Mill Creek Hundred. $1651 were paid at the time the land was conveyed to Eastburn. To secure to Justis $11,349, the balance of the purchase money, Eastburn on the same day made to Justis four bonds, one for the payment of $3056.60 on or before April 10, 1821; the second for the payment of $2918.70 on or before April 10, 1822; the third for $2760.80 to be paid April 10, 1823; and the last for $2612.90 to be paid April 10, 1824. At the same time he and Hannah, his wife, executed to Justis a mortgage deed of the same land for securing the payments of said $11,349 at the times and in the manner mentioned in said bonds. The deed was duly acknowledged, the wife examined, and the deed recorded in the office for recording of deeds in New Castle County. To the said bonds there were annexed warrants of attorney to confess judgment, and judgment was entered on each of them.
On May 28, 1821, Eastburn paid to Justis $692.03. This is all the money that has been paid on these bonds and mortgage; and the judgments and mortgage are still unsatisfied. In December, 1821, or January, 1822, Justis filed a bill against Eastburn, stating that Eastburn was not the owner of any other real property in this state, and that from the depreciation of property generally, and by reason of waste committed by Eastburn on said land, and its ruinous condition, it is doubtful security for the debt due to Justis.
The bill then charged that Eastburn had committed great waste on said mortgaged premises, and was still committing waste; and prayed a writ of injunction to stay waste. A writ was ordered.
Afterward, on January 29, 1822, Aaron Justis made an affidavit before the Register stating all the circumstances above mentioned and further, viz: that the said Eastburn since the said money secured by the first mentioned bond became due and payable has committed waste and spoil on said premises, and lately has been actively engaged by his agents and laborers in felling and cutting the wood growing upon the same, for sale, whereby the value of the said mortgaged premises unless the sale of the same is restrained will be much impaired; that the said Eastburn for some time past, and particularly between the time when he, Justis, applied for a writ of injunction and the time of service of the same, had by himself and his agents been actively engaged in cutting down a number of trees standing on the said premises, and cutting the same up into wood, and leaving others cut to be sold for posts, rails, and sawing, and in hauling the wood cut up from off the said mortgaged premises; that the destruction of the said trees on the said premises, which has lately been committed by the aforesaid Samuel Eastburn, his agents, tenants, servants and laborers, is of the most wanton and injurious nature, and a considerable number of hands have lately been engaged in committing this waste. And deponent further says that on the day of the date of this affidavit, as witnessed by the deponent, there is, including all the trees felled and lying, sufficient to make upwards of two hundred cords of wood, and that deponent this day saw the carts engaged in hauling away the wood from said mortgaged premises.
The petition (dated February 9, 1822) then prayed that an injunction might issue etc. to restrain the defendant from selling any wood or timber being upon the said premises to any person or persons to be by him her or them or his her or their agents removed; and from removing, or causing to be removed by them, or his agents, servants, tenants, factors, or laborers any wood or timber now fallen upon the said tract of land.
THE CHANCELLOR had no difficulty in ordering the writ to prevent the removal of the timber thus wastefully, and to the creditor injuriously, cut. This has been done in more instances than one, in this Court. The remedy would be imperfect if the timber wantonly cut down were allowed to be removed, for timber may often be the principal source from which the debt can be paid. See 1 Ves.Jr. 93. He doubted, though, whether it would be regular to order a second writ, but here is new matter, "the cutting up and removing the wood." In the bill this was not stated; but in the affidavit it is said that between the time of the application for the first writ and its being served, the defendant has been actively engaged in felling trees and cutting them into wood, and in hauling the wood cut up, from off the premises. This removal of the timber, as well as the cutting the wood, after the application, that is after the bill filed, is a new fact. The removal of the wood has happened since the former order was obtained, therefore it is a proper subject for the interposition of this Court. See 2 Madd. 176. Norris v. Kennedy, 11 Ves. 565. Stone v. Tuffin, Amb. 32.
Writ ordered.
[Miscellaneous entries and orders of the Court of Chancery and Orphans' Court appear here, Ridgely's Notebook III, 576-587.]