Слике страница
PDF
ePub

parties contemplated at the time of the demise, without any possible advantage to the owner of the reversion.

Upon the principles of modern cases, it cannot be waste to make new erections upon the demised premises, which may be removed at the end of the term without much inconvenience, leaving the property in the same situation as it was at the commencement of the tenancy; and the materials of which new buildings, if left on the premises, would more than compensate the owner of the reversion for the expenses of their removal.

It is always a question of a degree to be established by evidence, whether the working of a mine which has been formerly worked is waste or not. There is no doubt that a tenant for life, though impeachable for waste, may properly work an open mine. But, if the working of the mine had been abandoned by the owner of the inheritance many years previously, with a view to some advantage which he considered would accompany such discontinuance, apart from the profits to be made from the sale of the mineral, it is doubtful whether a succeeding tenant for life could properly treat that as an open mine.

When the property is unimproved land, not adaptable to any other beneficial use than that of mining, the right of the life tenant to use it reasonably for such purpose, has some support in the adjudications, and is certainly not without reason to uphold it.

The clause "without impeachment of waste," is so far restrained in equity that it does not enable a tenant for life to commit malicious waste so as to destroy the estate, which is called "equitable waste", for in that case the court will not only stop him by injunction, but will also order him to repair if possible the damage he has done. It is only inserted to excuse "permissive waste."

Equity goes greater lengths than the courts of law in staying waste. It is a wholesome jurisdiction to be liberally exercised in the prevention of irreparable injury, and depends on much latitude of discretion in the court. It will interpose when the tenant affects the inheritance in an unreasonable

and unconscientious manner even though the lease be granted without impeachment of waste.

If a stranger cuts down timber, or commits any other waste, it belongs to the tenant for life, who is dispunishable of waste, and not to the remainder-man in tail, or in fee.

Timber, while standing, is part of the inheritance; but whenever it is severed, either by the act of God, as by a tempest, or by a trespasser, and by wrong, it belongs to him who has the first estate of inheritance, whether in fee or in tail.

Where by the act of God a large quantity of timber is blown down by a storm, the produce is laid out in the purchase of stock, and the interest of the fund is paid to the successive tenants for life.

Upon the same principle, when timber is decaying and it cannot benefit the revisioner to allow it to remain standing, the court, having ascertained that it is for the benefit of all parties, orders the timber to be cut down, and the produce to be invested, and the interest of the fund to be paid to the tenants for life in succession.

When the tenant for life has committed the wrongful act which produces the fund, the court will not allow him to gain any benefit from it; but the reversioner takes the benefit arising from an accretion of the fund, in lieu of the accretion of the timber.

Assignees must stand exactly in the same situation as the tenants for life would stand, and be bound by exactly the same equities.

Where timber is cut for the benefit of the estate, either by the act of the court, or out of court by the act of trustees, which the court has adopted, it is treated as so much of the estate.

Where the timber is properly cut, the purchase money of the timber follows the land, and the tenant for life, although impeachable for waste, receives the income during his life; and when the first tenant for life, unimpeachable for waste, is reached he takes the capital.

The court will not allow the tenant, impeachable for waste,

to avail himself of his own wrong; and the law, therefore, vests the timber wrongfully cut in the person having the first legal estate of inheritance.

At law a tenant for life, without impeachment of waste, has the absolute power and dominion over the timber upon the estate, but a court of equity controls him in the exercise of that power, upon the ground that it will not permit an unconscientious use to be made of legal power. It regards such an unconscientious use of the legal power as an abuse, and not as a use of it.

The interference of courts of equity with legal rights is for the improvement of the law and the furtherance of justice, and therefore to say that a doctrine of equity is an encroachment on a legal right is simply to censure the whole doctrine of equity.

[Trespass to Real Estate.]

A plaintiff's title having been established at law, he has a right to an account of rents and profits from the time of his title's accruing.

There are cases where at law a person may not recover rents and profits, and yet a court of equity will direct it, where it has proper jurisdiction, as in an action for rents and profits, which is in the nature of an action of trespass. If the person dies against whom the action is brought, moritur cum persona, the court will direct an account of rents and profits notwithstanding.

If a man brings an ejectment bill for possession, and an account of rents and profits, where there is no mixture of equity, the court will oblige the plaintiff to make his election to proceed in equity or at law, and if at law he must proceed for the whole there.

Where a man brings his bill in a court of equity, where there is a trust, and upon a mere equitable title, there he shall recover the estate, and the court will give him an account of the rents and profits, and that from the time the title accrued, unless upon special circumstances, and then they will restrain it to the time of bringing the bill; as where

the defendant had no notice of the plaintiff's title, nor had the deeds and writings in his custody, in which the plaintiff's title appeared, or where the title of the plaintiff appeared by deeds in a stranger's custody.

Where there has been any default or laches in the plaintiff, in not asserting his title sooner, but he has lain by, there the court has often thought fit to restrain it to the filing of the bill.

In the case of a bill brought by an infant to have possession of the estate, and an account of rents and profits, the court will decree an account from the time of the infant's title accrued, for every person who enters on the estate of an infant, enters as a guardian or bailiff for the infant.

There are cases where the court will do it merely upon a legal title, as wherever the plaintiff has been kept out of it by fraud, misrepresentation, or concealment of the defend

ant.

If a widow is entitled to dower, and her claim is merely upon her legal title, but cannot ascertain the lands out of which she is dowable, a court of equity will assist her to find out the lands, and will order her to proceed upon a particular part, and reserve the further consideration till after judgment, and if her title of dower is established, will give her profits from the time not only of her demanding, which is the time she is to have it in her writ of dower, but will give it to her from the time of her title accrued.

If an heir at law brings a bill for discovery of deeds and writings, and for the mesne profits, and the court decree him the deed, etc., yet if the defendant should afterwards at law make out a better right than he did in equity, the court would not disturb him in it, but assist him in recovering the deeds back again.

A court of equity will not interfere by injunction, when the party guilty of forcible entry was a mere stranger, and might be turned out of possession immediately.

A personal action for mesne profits dies with the person as to the injury committed in the fact constituting the cause of that action, yet, if the personal injury was com

mitted with profit to the party doing that injury, there is both in law and equity a remedy sufficient to extract out of his pocket that profit which he has reaped by his injurious act.

In the ordinary case of a tenant, if you bring an ejectment, you cannot afterwards bring an action for use and occupation for the rent subsequent to the demise; because, having treated his holding as founded in trespass, you shall not treat it as founded in contract.

If there be a principle, upon which courts of justice ought to act without scruple, it is this; to relieve parties against that injustice occasioned by their own acts or oversights at the instance of the party against whom the relief is sought.

Where there has been an adverse possession, and upon an application to the court for equitable relief the plaintiff appears entitled to an account of the rents and profits, if there has been a mere adverse possession without fraud, concealment, or an adverse possession of some instrument without which the plaintiff could not proceed, the court has said, the account shall be taken only from the time of filing the bill; for it is his own fault not to file it sooner.

If a plaintiff files a bill for an account, and an injunction to restrain waste, stating that the defendant claimed by a title adverse to his, he states himself out of court as to the injunction.

Where a common runs through a wood, it is well known. that the cattle pick up a great deal in the glades; and if damage is done thereby to the young timber, it is not injury; for it is the consequence of the right. There may be very different rights of common, and very different justifications. One might have it for cattle levant and couchant; another for common without stint, etc.

If the court will not interfere with a trespasser, he may go on by repeated acts of damage, perfectly irreparable. But when the trespass partakes of the nature of waste more than in general cases, the tenant colluding; and if the tenant's act is waste, the act of the other must have so much of the

« ПретходнаНастави »