by the mortgagor, and others with the mortgagor's connivance and consent, and about to be pursued, which, it may reasonably be inferred, may result in preventing or diminishing the power to make profitable use of the plant under the franchises." 547. Waste by Mortgagee Not in Possession as Mortgagee. "A mortgagee in possession may doubtless be compelled to account for his waste of the mortgaged premises and to submit to a deduction therefor from the mortgage debt...... But an obvious essential to such relief is that the mortgagee, when committing waste, was in possession as mortgagee and not in some other right...... Herein......is the infirmity of this branch of the decree. Part of the inquiry to respondents occasioned by appellant's acts was done while appeallant was vendor in possession pending the performance of a contract of sale. The remaining injury was done after the delivery of the deed but while the grantor remained in possession under a clause in the contract of sale. Prior to the delivery of the deed appellant was not mortgagee. After delivery he was mortgagee, but his possession was not under the mortgage but under the contract. For an injury done to the corpus of the estate while thus in possession appellant was undoubtedly liable to respondents and such liability could be enforced by an action at law. It created an independent personal demand in no wise growing out of the mortgage relation. It was therefore incapable of being interposed as a defence to a bill to foreclose." McMichael v. Webster, 57 E. 302, and cases cited, (Err. & App. 1898). In Onderdonk v. Gray, 19 E. 68 (Chan. 1868). In possession as tenant and not as mortgagee. 548. Returning to Wasted Property Building Wrongly Removed by Mortgagor. Legal Remedies for Waste. "Can a court of equity return to the wasted property the building that has been wrongfully removed, and sold to a bona fide purchaser, after being affixed to other land not included in the mortgage?. . . . . . Where the mortgage is regarded merely as a lien for security and the mortgagor has the right of possession until ejectment, or foreclosure, there the mortgagee has simply the right to restrain the removal of the property by injunction, to protect his lien; or after the removal, a right to recover the damage for the wrongful diminution of his security.......As to innocent third parties, the mortgagor is the owner of the property, and may serve and sell until restrained by injunction, ejected by entry, or barred by foreclosure." Verner v. Betz, 46 E. 265-267 (Err. & App. 1889), and cases cited. Replevin see Kircher v. Schalk, 39 L. 335 (Sup. Ct. 1877). Jackson ads. Turrell, 39 L. 333 (Sup. Ct. 1877). An action on the case by second mortgagee for removal of fixtures, with measure of damages; "Damages......are to be limited to the amount of injury to the mortgage." 549. Measure of Damages for Waste. Injunction Refused. "In the case of the former [mortgagor in possession] the measure of damages [for waste committed] is the diminution in the value of the mortgage security." Tate v. Field, 57 E. 634 (Err. & App. 1898), and cases cited. In Schalk v. Kingsley, 42 L. 36 (Sup. Ct. 1880). "Each mortgagee [where there are several] in turn may, without reference to the other, recover such damage as he can show he has sustained on his part." In Elvins v. Del. & Atl. Tel. Co., 63 L. 245 (Err. & App. 1899), and cases cited. "When the owner alone sues and the case goes to trial upon the issue therein joined, the damages must be commensurate with the loss which falls upon the land by reason of the wrongful act. The damage committed upon the locus in quo is none the less because it is incumbered by a mortgage. The owner suffers to the extent of the entire loss. His premises are diminished in value to the full amount that will compensate for the injury. He is entitled to redeem the mortgage, and he may compel the wrongdoer to restore to him all that he has destroyed and deprived him of.... He must recover all the damages that both mortgagor and mortgagee can claim, and it necessarily constitutes a legal bar to further recover by either." Court will so control recovery as to satisfy the rights of all parties. In Bank of Chenango v. Cox, 26 E. 452 (Chan. 1875). "Where, as in the case before me, there is no allegation of insolvency, nor any evidence of fraud, nor any circumstances leading to the conclusion that no redress at law nor in equity can be had unless it be by injunction, and an ac count is prayed in the bill from the person who has committed the waste, the injunction should not be granted." In Prudential Ins. Co. v. Guild et al., 64 Atl. 696 (Chan. 1906), and cases cited, (which see), "The receiver having removed these fixtures, is liable for the damages sustained by the mortgagee. These damages are the diminution in value of the mortgage security by reason of the waste...... The diminution in value of the security is measured in this case by the difference between the value of the premises at the time of the sale under the mortgage after the waste, and their value at that time, had the premises been sold, with the fixtures attached." |