Vrooman v. Dunlap.

gage on said premises as collateral security for a portion of the purchase money aforesaid, and also in consideration that the plaintiff would waive the execution of a bond to the plaintiff to accompany the mortgage, the defendant agreed, undertook and promised with the plaintiff not to commit waste on said premises, by cutting timber or otherwise, and that the farm should be kept and preserved in as good a condition as it was at the time of sale, while the mortgage remained unpaid. And to induce the plaintiff to believe that the said farm would be by him preserved from becoming lessened in value, and to rely on the same as security for the payment of the said purchase money, and to induce the said plaintiff to waive the execution of said bond and give the deed aforesaid, the defendant falsely and fraudulently represented and affirmed to the plaintiff, at the time and place aforesaid, that he purchased said farm for a homestead for his son; whereas in truth and in fact he purchased the said farm for the purpose of selling the same at an advance, to one Dygert, who was without means, and wholly unable to purchase property of the value and to the amount of said farm. And the plaintiff further avers, that the false and fraudulent representations above mentioned had a material influence with and upon him in inducing him to execute and deliver to the defendant the deed of the said farm, at the time and place aforesaid. That the defendant, two days after he purchased the farm, sold and conveyed it to Dygert without any covenant or agreement from and with Dygert restraining him from committing waste, or obliging the said Dygert to keep the premises in good condition, or providing for preserving the said premises from waste and depreciation in value. He further shows that the defendant suffered and permitted Dygert to cut and destroy the timber on said farm, and suffered and permitted the fences, farm and buildings to become ruined, dilapidated and greatly depreciated in value, to the amount of about $800. A foreclosure of the mortgage is then alleged, and a sale of the farm for a sum insufficient to pay the mort

Vrooman v. Dunlap.

gage. The deficiency on the 6th July, 1857, the day of sale, was $893.53. The plaintiff then prays that the defendant may be adjudged to pay to the plaintiff the said sum of $893.53, and interest, or such other sum as shall to the court seem just and equitable.

The case does not contain the opening of counsel to the jury. I am not therefore advised upon what ground he then put the case. In his points, now, he alleges that the agreement was that the defendant should pay the plaintiff for the farm $2700, of which he paid $200, and gave the mortgage for the remainder; that the defendant's promise to pay is not merged in the deed or mortgage; that the mortgage was only a security for the payment of the purchase money; and he claims that the plaintiff may recover in this action the deficiency. Some cases are cited, which the counsel supposes sustain these positions. Whatever may once have been the law upon this point, there can be no doubt what it now is, and has been, since the enactment of the revised statutes, which declare that "No mortgage shall be construed as implying a covenant for the payment of the sum intended to be secured; and when there shall be no express covenant for such payment, contained in the mortgage, and no bond or other separate instrument to secure such payment shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage." (See Hone v. Fisher, 2 Barb. Ch. 559.)

The points contained some positions touching the allegations in the complaint, of the false representations and promises, but no authorities or cases are cited. It is not easy to fancy what use the pleader intended to make of the allegations in the complaint of a promise not to commit waste, and that the farm should be kept and preserved in good condition. The owner in fee of land promises that he will not commit waste on his own land. The promise is made to a mortgagee. I always suposed that waste had some reference to land in which some one other than the possessor had an interest by

Hawkins v. Brown.

way of remainder or reversion.. I did not suppose that the absolute owner in fee could be guilty of waste upon his own land. But suppose the pleader did not use the term in the sense the law uses it, but intended simply to allege that the defendant promised not to cut timber, &c. and that he intended his action to be an action upon the promise or contract to recover damages for the breach; what then? I will not spend time in endeavoring to show that no such action, under the circumstances of this case, could be maintained. All the agreement between the parties, and all the representations, were made before the deed was executed and the mortgage given, and the statute says that the remedies of the mortgagee shall be confined to the land, &c. The allegations of a promise not to commit waste, and of fraudulent representations, were not the gravamen of the action. They were irrelevant, and would have been stricken out on motion.

The complaint was properly dismissed, and the judgment should be affirmed.

Judgment affirmed.

[ERIE GENERAL TERM, November 28, 1859. Greene, Marvin and Davis, Justices.]

HAWKINS VS. BROWN & JEFFERY.

Prior to June 23, 1855, the plaintiff and defendants were partners, in the business of manufacturing machines, at Corning, in this state. On that day they agreed to dissolve the partnership; the defendants to give up to the plaintiff certain notes held by the former against him, for $3000, and to give him a shingle machine, and also to construct for him an engine and bill of machinery, which the plaintiff was to set up and run until, from one half the net earnings thereof, to be received by the defendants, they were fully paid for such machinery, less the sum of $300, which was to be deducted from the price. The defendants manufactured the engine and machinery, but on demand by the plaintiff, refused to deliver the same, on the ground

Hawkins v. Brown.

that the plaintiff had purchased a lot of land in Pennsylvania, on which he proposed to erect the said machinery; that for the purchase money thereof, $1541, he had confessed judgments which had been duly docketed, so as to become liens upon the land; that by the law of Pennsylvania the erection of this machinery upon the premises would make such machinery a part of the realty, so that the judgments would attach to the same as liens, and a sale of the land would pass title to such machinery to the purchaser. Held, 1. That the plaintiff could not recover of the defendants for the price of the shingle machine, in the absence of any proof of a previous demand and refusal of delivery.

2. That in respect to the engine and machinery, if the law of Pennsylvania were as claimed by the defendants, the plaintiff had no right to require the delivery of that property in order that he might turn it over to pay, or secure, a precedent debt, in fraud of the defendants' claim for the purchase money.

3. That the defendants being, by the express terms of the contract, authorized to retain the title to the machinery until the purchase money was paid, they were not bound to relinquish their title to the property, or to allow the property to be sent out of the state, whereby they would be deprived of the same, or their lien upon it.

4. That evidence to show that the law of Pennsylvania was as claimed by the defendants, was admissible, and ought to have been received. JOHNSON, J., dissented.

HE plaintiff and defendants, being partners, under the name of Brown, Jeffery and Co., on the 23d of June, 1855, made an agreement in writing, by which the latter agreed to purchase of the former his interest in the partnership property and business, and pay him, for the same, certain notes which the said Brown, Jeffery & Co. held against him for $3000, he paying the interest thereon; and further agreed to give the plaintiff a shingle mill in good condition for business, and also to manufacture and construct a bill of machinery, engine, &c. which the plaintiff was to set up and run, the defendants to have one half the net earnings thereof till the whole bill should be paid, less $300 to be deducted from the bill, when the plaintiff should have paid for the saine, except the said sum of $300, when the defendants were to give a title to the machinery, and upon which payment they were to deduct the said $300 from their regular price of the same, and the plaintiff, in consideration of the premises, agreed to sell all his

Hawkins v. Brown.

interest in the business of Brown, Jeffery & Co.; and it was also understood and agreed that the machinery, except the shingle machine, should belong to the defendants till a full performance of the agreement by the plaintiff. The price and capacity of the engine and machinery was fixed by the agreement. This action was brought for a breach of the agreement. The alleged breach consists in the refusal of the defendants to manufacture and construct the engine and machinery, and to allow the plaintiff to set up and run the same; and the plaintiff claimed, by way of damages for the breach, the $300, which, by the agreement, was to be deducted from the bill of machinery upon payment therefor, the expense incurred by the plaintiff in making the necessary preparation to set up and run the machinery, and the price of the shingle machine which he did not want, and declined to take without the other machinery. The defense, as set up in the answer and by the evidence on the trial, consisted of, 1. A general denial. 2. Allegations of performance as respects the notes and the shingle machine. 3. Breach of the contract by the plaintiff in refusing to set up and run the machinery in the state of New York, or elsewhere than in the state of Pennsylvania, and upon premises which he does not own, or which are incumbered to their full value, and his refusal to give the defendants security against the probable loss of the machinery, by reason of his not having a free and unincumbered title to the premises on which he proposed to set up and run the machinery. 4. An offer on the part of the defendants to allow the plaintiff to set up and run the machinery at any place in the state of New York or elsewhere on premises to which the plaintiff has a title, or which is not incumbered to an amount which will jeopard the title of the defendants, and the refusal of the plaintiff to accept such offer.

Upon the trial, after the plaintiff had gone through with his case and rested, the defendants offered to prove a conveyance by one Devlin to the plaintiff of the land at Lockhaven, in the state of Pennsylvania, on which the plaintiff proposed