This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The owner of land subject to a mortgage, in possession of the land, is under an obligation not to commit waste as against the mortgagee. What constitutes waste as between mortgagor and mortgagee is, it seems, ordinarily to be determined by the same considerations as apply in connection with the question of waste as between tenant and remainderman or reversioner.36 Generally speaking, the mortgagor may do such acts on the mortgaged land, even though these involve the cutting of timber or severance of other parts of the realty, as are incident to the utilization of the land in the manner in which it might be expected to be utilized, having regard to its nature and the use to which it had been appropriated prior to the making of the mortgage,37 or, as the same idea has been otherwise expressed, acts of the mortgagor in cutting wood or otherwise severing parts of the realty are not wrongful when from the circumstances of the case the assent of the mortgagee may be reasonably presumed.38 And provided the acts of the mortgagor fall within these limits, the fact that their effect is to prevent the mortgagee from realizing to the full extent of the obligation sought to be secured would appear to be immaterial.39 Conversely, the mortgagor cannot injure
Am. Rep. 271; Smith v. Columbia Ins. Co., 17 Pa. 253. In Massachusetts the contrary view is taken, - that the mortgagee may recover both the proceeds of insurance and the full amount of the mortgage. King v. State Mut. Fire Ins. Co., 7 Cush. (Mass.) 1; Suffolk Fire Ins. Co. v. Boyden, 9 Allen (Mass.) 123.
36. See Young v. Haviland, 215 Mass. 120, 102 N. E. 338.
37. See Ward v. Carp River Iron Co., 47 Mich. 65, 10 N. W. 109, 50 Mich. 522, 15 N. W. 889;
Vervalen v. Older, 8 N. J. Eq. 98; Judkins v. Woodman, 81 Me. 351, 2 L. R. A. 607, 17 Atl. 298; Hapgood v. Blood, 11 Gray (Mass.) 400, 42 Am. Rep. 624. But In Maples v. Million, 31 Conn. 498. if. was decided that shrubs planted by a nurseryman could not be removed by him for purposes of sale.
38. Smith v. Moore, 11 N. H. 55; Page v. Robinson. 10 Cush. (Mass.) 99; Searle v. Sawyer, 127 Mass. 491.
39. Young v. Haviland, 215 the land by removing buildings or other fixtures,40 timber,41 or minerals,42 when their removal involves a departure from the ordinary or natural utilization of the property, and the mortgagor so doing is guilty of waste.
In a few states it seems that the mortgagee's only remedy for acts of waste by the mortgagor is in equity, and that he cannot recover at law for any waste or injury to the land.43 In most of the states, however, even though the legal title is not in the mortgagee, he has a right of action against the owner of the mortgaged land for injury to his security by acts of spoliation on the land.44 Equity will restrain by injunction the commission of waste by the mortgagor, if calculated to render the security of questionable sufficiency, but not otherwise.45 And even though the mortgagee hae given permission to the mortgagor to cut timber or the like, equity will intervene to protect the mortgagor from an unconscientious abuse of the privilege.46
Mass. 120, 102 N. E. 338. Compare Chavez v. Schairer, - Tex. Civ. App. - , 199 S. W. 892; Forman v. G. D. Holloway & Son, 122 Ark. 341, 183 S. W. 763.
40. Cole v. Stewart, 11 Cush. (Mass.) 181; Wilmarth v. Bancroft, 10 Allen (Mass.) 348; Dorr v. Dudderar, 88 111. 107; Hoskin v. Woodward, 45 Pa. St. 42.
41. Page v. Robinson, 10 Cush. (Mass.) 99; Sanders v. Reed, 12 N. H. 558; Mosher v. Vehue, 77 Me. 169; Wright v. Lake, 30 Vt. 206. See Forman v. G. D. Hollo-way & Son, 122 Ark. 341, 183 S. W. 763. But see Angier v. Angier, 98 Pa. St. 587, 42 Am. Rep. 624, which appears to recognize no limit upon the mortgagor's right to cut timber.
42. Ante, Sec. 282.
43. Cooper v. Davis, 15 Conn. 556; Vanderslice v. Knapp, 20 Kan. 647; Tomlinson v. Thompson, 27 Kan. 70. See Triplett v. Parmlee, 16 Neb. 649, 21 N. W.
403; Knoll v. New York, C. & St. L. Ry. Co., 121 Pa. St. 467, 1 L. R. A. 366, 15 Atl. 571. These decisions place the mortgagee rather at the mercy of an unscrupulous mortgagor, and there would seem, on principle, no reason why one injured as regards a proprietary right, even though it be a lien right only, should not have an action of tort against the person committing the injury.
44. Lavenson v. Standard Soap Co., 80 Cal. 245, 13 Am. St. Rep. 147, 22 Pac. 184; Arnold v. Brood, 15 Colo. App. 389, 62 Pac. 577; Searle v. Sawyer, 127 Mass. 491; Jackson v. Turrell, 39 N. J. L. 329; Van Pelt v. McGraw, 4 N. Y. 110; Carpenter v. Cincinnati & Whitewater Canal Co., 35 Ohio St. 307; Heath v. Haile, 45 S. C. 642, 24 S. E. 300; Chavez v. Schairer, - Tex. Civ. App. -, 199 S. W. 892; Langdon v. Paul, 22 Vt. 205.
The mortgagee has a right of action, in mosl states, against a third person committing acts of waste upon the land,47 provided, at least, such person did not act under authority from the mortgagor and in ignorance of the existence of the mortgage.48 Occasionally it is said that there is no right of action as for the injury to the security unless such injury is shown by the exis45. King v. Smith, 2 Hare. 239; Coker v. Whitelock, 54 Ala. 180; Buckout v. Swift, 27 Cal. 434, 87 Am. Dec. 90; Lavenson v. Standard Soap Co., 80 Cal. 245, 13 Am. St. Rep. 147, 22 Pac. 184; Dorr v. Dudderar, 88 111. 107; Minneapolis Trust Co. v. Verhulst, 74 111. App. 350; Fulton v. Oert-ling, 131 La. 768, GO So. 238; Webster v. Peet, 97 Mich. 326; Mor-iarty v. Ashworth, 43 Minn. 1, 19 Am. St. Rep. 203, 44 N. W. 531; State Sav. Bank v. Kercheval, 65 Mo. 682, 27 Am. Rep. 310; Verner v. Betz, 46 N. J. Eq. 256, 7 L. R. A. 630, 19 Am. St. Rep. 387, 19 Atl. 206; Beaver Lumber Co. v. Eccles, 43 Ore. 400, 99 Am. St. Rep. 759, 73 Pac. 201; Schmaltz v. York Mfg. Co., 204 Pa. 1, 59 L. R. A. 907, 93 Am. St. Rep. 782, 53 Atl. 522; Fairbank v. Cud-worth, 33 Wis. 358; Anderson v. Englehart, 18 Wyo. 409, 108 Pac. 977.