Nos. 10, 11.

- Abraham v. Bubb; Williams v. Williams. Notes.

respect of her estate tail after possibility, &c. ; yet having such estate ex provisione viri, she is within the statute 11 H. VII, which will also extend to jointresses, tenants for lives without impeachment of waste, if the cutting of timber be a species of alienation within the statute, according to Cook v. Winford: and it must be taken that the legislature meant to restrain husbands from giving this power to their wives over the husband's estate, which, with respect to the timber, amounts to an absolute grant, inconsistent with the limited grant professed to be made. [LE BLANC, J. The grant of an estate for life without impeachment of waste would take the case out of the statute.] This is claimed, not by the express grant of the husband, but as a privilege of law tenant in tail after possibility takes not by the act of the party, but by the operation of law; and the law only favours such an estate more than a common estate for life (which in other respects it resembles), on account of the heritable nature of the estate which was once in her; but here, the inheritable quality of the estate being gone, nothing but the bare privilege of being dispunishable for waste remained, and the property in the timber cut is gone. It was intimated that gentlemen had taken notes for a second argument: but the Court said that if upon consideration. [221] they had any doubt upon the subject, they would direct the case to be argued again: and afterwards they sent the following certificate:

**

This case has been argued before us by counsel; we have considered it, and are of opinion, first, That Catherine Williams is unimpeachable of waste upon the estate and premises comprised in the said indentures of lease and release or settlement in the bill mentioned. Secondly, That having cut timber thereon, she is entitled to the timber so cut as her own property. And, thirdly, That the said defendant became tenant in tail after possibility of issue extinct.

ENGLISH NOTES.

ELLENBOROUGH.
N. GROSE.

S. LE BLANC.

J. BAYLEY.

In regard to the incidents of estates, equity follows the law. A tenant in fee with an executory devise over is entitled to commit legal waste, but not equitable waste. Turner v. Wright (1860), 2 De G. F. & J. 234, 29 L. J. Ch. 598, 6 Jur. (N. S.) 809. Another kind of

Nos. 10, 11.-Abraham v. Bubb; Williams v. Williams. Notes.

owner whose estate is of a limited character is a tenant in tail of estates attached to a title, where the estates and title have been conferred and settled by Act of Parliament. The position of such a tenant in tail was considered in Attorney General v. Duke of Marlborough (1818), 3 Madd. 498, 5 Madd. 280, 18 R. R. 273; and the duke was restrained from cutting ornamental timber planted for the ornament and shelter of Blenheim House.

Cases defining equitable waste will be found in the notes to Vane v. Lord Bernard, No. 9, p. 488, supra.

The modification by certain recent statutes of the law relating to waste is also referred to in the notes to that case. The powers of a tenant for life under the Settled Land Act, 1882 (45 & 46 Vict. c. 38), are conferred on the following persons by sect. 58 of that statute:

A tenant in tail, including a tenant in tail who is by Act of Parliament restrained from barring or defeating his estate tail, and although the reversion is in the Crown, but not including a tenant in tail where the land in respect whereof he is so restrained was purchased with money provided by Parliament in consideration of public services.

A tenant in fee simple with an executory limitation, gift, or disposition over.

A person entitled to a base fee although the reversion is in the Crown.

A tenant in tail after possibility of issue extinct.

The estate of a person having the powers of a tenant for life must be an estate in possession, as opposed to reversion or remainder before he can exercise those powers. Re Strangways, Hickley v. Strangways (C. A. 1886), 34 Ch. D. 423, 56 L. J. Ch. 195, 55 L. T. 714, 35 W. R 83.

AMERICAN NOTES.

The tenant in tail does not flourish on our soil. The first principal case is cited in 3 Pomeroy Equity Jurisprudence, sect. 1348.

A MORTGAGEE in possession is not liable to keep buildings on the mortgaged property in repair, but is liable for an act of wilful waste committed.

[392] On a bill to redeem, an account decreed, and £240 reported due, and exceptions to the report. Pending which the defendant, the mortgagee, commits waste. Court orders the mortgagee to deliver up the possession on the plaintiff giving security to abide the event of the account.

The bill being to redeem a mortgage, on the hearing an account was decreed, and £240 reported due; to which report the plaintiff had taken exceptions. The cause thus standing in court, the LORD KEEPER on a motion and reading affidavits, that the defendant had burnt some of the wainscot, and committed waste, ordered the defendant to deliver up possession to the plaintiff, who was a pauper, giving security to abide the event of the account, Nov. 28th, Reg. Lib. 1700, A. fol. 46.

Russel v. Smithies.

1 Anstruther, 96-97 (3 R. R. 560).

Waste- Mortgagee in Possession.

[96] A mortgagee is not bound to keep up buildings in as good repair as he found them, if the length of time will account for their being worse.

On a bill of foreclosure, it was referred to the Deputy Remembrancer to take an account what the mortgagee had received from the rents, &c., or might have received, without wilful neglect in her. It appeared that the premises (malt-houses, &c.) had been

Nos. 12, 13. Hanson v. Derby; Russel v. Smithies.— Notes.

allowed to fall so much out of repair, that the rent fell from £22 to £18. Plaintiff had done some repairs, and had held 40 years. Graham and Stanley argued, that the mortgagee in possession, being only a trustee till foreclosure, is bound to keep the premises. in the same repair as if he was owner, 2 Vern. 392, 3 Atk. 518; and that the diminution in value should have been [* 97] charged on the plaintiff, as she might have received the difference if she had repaired.

By the Court:

The mortgagee has done some repairs; and, as the only proof of these repairs being insufficient is the diminution in value, we must confirm the report; for it cannot be supposed that after 40 years' possession, the mortgagee is bound to leave the premises in as good condition as he found them.

ENGLISH NOTES.

The liability of a mortgagee in possession for waste depends upon whether the estate is or is not sufficient to satisfy his charge. Millett v. Davey (1862), 31 Beav. 470, 32 L. J. Ch. 122, 9 Jur. (N. S.) 92.

Where the mortgage is by deed, and does not exclude the provisions of the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 19, (1), IV., the mortgagee in possession is empowered by that section, "to cut and sell timber and other trees ripe for cutting, and not planted or left standing for shelter or ornament, or to contract for any such cutting and sale, to be completed within any time not exceeding twelve months from the making of the contract." The section only applies to mortgages executed after the passing of the Act. Ibid., s. 19 (4).

A mortgagee in possession is entitled to an allowance in respect of lasting and permanent improvements. Shepard v. Jones (C. A. 1882), 21 Ch. D. 469, 47 L. T. 604, 31 W. R. 308. Henderson v. Astwood

(P. C. 1894), 1894, A. C. 150.

AMERICAN NOTES.

That a mortgagee in possession may not commit waste is held: Youle v. Richards, 1 Saxton Chancery, (N. J.), 534 ; 23 Am. Dec. 722 (citing Hanson v. Derby), McCormick v. Digby, 8 Blackford (Indiana), 99; Onderdonk v. Gray, 19 New Jersey Equity, 65.

It has been very curtly held that a mortgagee in possession is bound to make ordinary repairs: Barnett v. Nelson, 54 Iowa, 41; 37 Am. Rep. 182: "Is bound to use reasonable means to preserve the estate from loss or injury." "Is bound to make all reasonable and necessary repairs, and is re

No. 14.

Humphreys v. Harrison, 1 Jacob & Walker, 581, 582. — Rule.

sponsible for loss occasioned by his wilful default or gross negligence in this respect." 2 Jones on Mortgages, sect. 1126. "He is not even bound to repair defects arising in the ordinary way by waste or decay." Ibid.; Dexter v. Arnold, 2 Sumner (U. S. Circ. Ct.), 108 (by STORY, J.); Shaeffer v. Chambers, 2 Halsted (6 New Jersey Equity), 548; McCumber v. Gilman, 15 Illinois, 381; Dozier v. Mitchell, 65 Alabama, 511; State v. Brown, 73 Maryland, 485, 515; Givens v. McCalmont, 4 Watts (Penn.), 460; Guthrie v. Kahle, 46 Pennsylvania State, 331.

A MORTGAGOR in possession will be restrained from committing waste, if the security is insufficient.

Humphreys v. Harrison.

1 Jacob & Walker, 581-582 (21 R. R. 238).

Waste. Mortgagor Restrained.

[581] A mortgagee is entitled to an injunction to restrain a mortgagor in possession from cutting down timber, if the land, without it, is a scanty security. It may be extended to cutting down underwood contrary to the usual course of husbandry, but not to underwood generally, although the mortgagor is insolvent.

Mr. Simpkinson moved for an injunction to restrain the defendant, a mortgagor in possession, from cutting timber on the mortgaged premises. The bill, which was for a foreclosure, was filed by the first mortgagee against the mortgagor and second mortgagee, and the affidavit in support of it, stated, that the land without the timber was an insufficient security, and that the timber was not in a fit state to be cut down.

The LORD CHANCELLOR (Lord ELDON).

If it is sworn that the land is a scanty security without the timber, that is sufficient to entitle you to the injunction.

Mr. Wetherell moved to extend the injunction to restrain the defendant from cutting the underwood, which, as well as the timber, was expressly included in the mortgage deed. The plaintiff was proceeding in ejectment to gain possession of the [*582] premises, and was apprehensive that the underwood would be cut down in the mean time.