The statute forbids waste by the tenant "without special license, in writing, making mention that he may do it." The consent of the landlord by parol will not be sufficient authority. McGregor v. Brown, 6 Seld. 114. The words usually employed for this purpose are "without impeachment of waste," but any words of equivalent import will be sufficient, provided they amount to a license to do the acts. The defendant, to bring himself within the statute, relies on that part of the lease which relates to the re-delivery of the personal property leased, in connection with the stipulation giving the defendant the privilege of expending a portion of the rent in each year for repairs. The covenant as to the personal property is entirely distinct from the obligations of the tenant, with respect to the real estate. The privilege of expending a portion of the rent reserved in repairs is not a license to the tenant to omit a duty put upon him by the statute, growing out of the relations between the parties. To construe a privilege given by the landlord to expend his money in the reparation of the demised premises, as a license to the tenant to omit his duty, to the spoil or destruction of the inheritance, would be an entire subversion of the obvious intent of the landlord. If it falls short of a license for the act complained of, it does qualify or abridge the obligation of the tenant which exists independent of the provisions of the lease.
It was further insisted that if any action lies, it should be an action ex contractu, and not in tort. As already observed, the gravamen of the action is the breach of a statutory duty. An action on the case founded in tort will lie for the breach of a duty though it be such as that the law will imply a promise on which an action ex contractu may be maintained. Brunell v. Lynch, 5 B. & C. 589. To the same effect are the cases of Kinlyside v. Thornton and Marker v. Kenrick, already cited, in which it was held that an action on the case in the nature of waste will lie, although the act complained of might also be the subject of an action for the breach of an express covenant.
59 Mississippi, 289. - 1881.
Chalmers, C. J. delivered the opinion of the court. - The complainants (appellants) are the children of R. L. Cannon, and claim, under the deed executed by their grandfather, Rusha Cannon, to be the remaindermen of the property therein conveyed for life to their said father. They bring this bill against the defendant, Barry, who has become the purchaser at bankrupt sale of the life estate of the father, alleging that he has committed, and is cummitting, waste upon the inheritance, for which they seek an account for the past and an injunction for the future. * * *
R. L. Cannon, being still alive, the interest of the complainants remains contingent, dependent upon the double contingency of their surviving him, and of their attaining majority or marrying. Hence, the bill cannot be maintained so far as it seeks an account of past waste, since their interest not being vested, and it being doubtful whether it will ever become so, they would have no right to any recovery that might be obtained. Whether they are entitled to any other relief depends upon the character of the acts done or permitted by the life tenant in possession. The locus in quo consists of twelve hundred acres of land, of which about three hundred acres only are arable, the balance being swampy in character and heavily timbered. When the defendant took possession, the arable portion was in such condition that it was wholly unproductive for the first year thereafter. By rebuilding the fences, clearing thirty or forty acres additional, removing some of the tenant's cabins to other locations, and building several new ones, he has brought up the rental value of the place to something less than three hundred dollars per annum, exclusive of the amounts expended each year in making these improvements. In accomplishing these results, he has freely cut and used the growing timber on the place, of which there is a superabundance for this and all other purposes. In so doing, as well as in removing the cabins, and perhaps in other respects, he has unquestionably been guilty of that which would be deemed waste under the English authorities, but which we cannot pronounce to be such under the state of things existing with us, and under the circumstances of this case. The condition of this country and that of England are wholly dissimilar, and that which would be a safe test there is altogether inapplicable here. With us, speaking generally, it may be said that nothing will ordinarily be held to constitute waste which is dictated by good husbandry, and promotes rather than diminishes the permanent value of the property as an estate of inheritance That such has been the nature and effect in the main, of the acts of the defendant, is incontestably established by the testimony in the case.
He has been guilty of permissive waste in suffering the mansion to go to decay, and also perhaps with respect to the orchard, but courts of equity take no jurisdiction of permissive waste by a life tenant. Their constant interference in such matters would render the enjoyment of the life estate impossible. But the defendant has also been guilty of three acts of unmistakable voluntary waste. He detached from the gin-house and sold the running gear machinery thereto belonging; nor does it change the character of the act that it was done at the instance of the father of the complainants, who received a portion of the price obtained. The father had no longer any interest in the property, and was not the legal guardian of his children. He has suffered the gin-house to be partially dismantled, and though it was done without his knowledge, he is nevertheless responsible for it.
More serious than these was his act in voluntarily permitting a large body of the woodland to become forfeited to the state for unpaid taxes. That the land forfeited was unproductive, that there remained belonging to the estate sufficient wood to supply its wants indefinitely, that the land had been overvalued by the assessor, and that the defendant had tried in vain to have valuation reduced, and that the board of supervisors in making the levy of county taxes had exceeded the limit of their authority, afford no excuse for his action. He took the estate as a whole, and was bound to so preserve it. He cannot segregate the profitable from the unprofitable, nor the sterile from the fertile, by preserving the one at the sacrifice of the other. The taxes were his individual debt, and the fact that they constituted a lien on both his own interests and that of the remaindermen made it his duty to keep them down. While a sale for taxes levied in excess of authority would by law then in force have conveyed no title to the purchaser, see Gamble v. Witty, 55 Miss. 26, it would have cast a cloud upon the title and by enabling the purchaser to add onerous damages to the amount paid, as a lien 0:1 the land, see Cogburn v. Hunt, 56 Miss. 718; s. c. ,57 Miss. 681, it would have added to the burden cast upon the tenants in remainder.