Chap. IV. Waste between coparceners, joint tenants, and tenants in common. possession. one person may sue on behalf of himself and all persons having the same interest. The remainderman of an undivided share of the inheritance may have an injunction and an account (k). When an estate for life is given with certain directions which impose an obligation on the tenant for life not to be guilty of waste, either voluntary, or permissive, the Court will interpose to prevent either him or his alienee from doing any act which would be a breach of the condition or obligation (1). As between coparceners, joint tenants, or tenants in common, the Court will not interpose to restrain waste (m), unless the wrongdoer is insolvent, or incapable of paying to the other the excess of the value beyond his own share (n), or is occupying tenant to the other (o), or unless the waste amounts to destructive waste, or spoliation (p). Tenant in tail in A tenant in tail in possession is dispunishable of both legal and equitable waste, because he may at any time bar the entail, and acquire the absolute fee simple (q). It has been held that an infant tenant in tail in possession has the same right as one of full age against the remainderman, and that his guardians might commit waste, although by converting the nature of the property from realty into personalty the next of kin of the infant would, in the event of his death, be benefited at the expense of the remainderman (). In Saville's case (s), Lord King would not restrain by injunction the guardians of an infant tenant in tail in possession from cutting timber, whilst the infant was in very bad health. After the death of the infant, which took place shortly afterwards, a bill by a remain (h) Co. Litt. 53 b; Whitfield v. Bewit, 2 P. W. 241. (1) Kingham v. Lee, 15 Sim. 396. See Blagrave v. Blagrave, 1 De G. & S. 253. (m) Twort v. Twort, 16 Ves. 129. See Bailey v. Hobson, 5 Ch. 182, where a decree had been made in a partition suit. (n) Smallman v. Onions, 3 Bro. C. C. 620. (0) Twort v. Twort, 16 Ves. 128; 10 R. R. 141. (p) Durham and Sunderland Railway Co. v. Wawn, 3 Beav. 119; Arthur v. Lambe, 2 Dr. & Sm. 428; Bailey v. Hobson, 5 Ch. 180; Job v. Potton, 20 Eq. 84 (mine), and see Watson v. Gray, 14 C. D. 192 (party wall). (1) 3 Madd. 532; 2 D. F. & J. 246. (r) Lyddall v. Clavering, cited. Amb. 371; and see C. A. 1881, s. 42. (8) Cited Forr. 16 Mose. 224. derman for an account against his assets was dismissed (t). An injunction may be had against the guardian of an infant tenant in tail, if the application be made on behalf of the infant (u). The right to be dispunishable of waste extends not only to the grantee of a tenant in tail, but also to the grantee of such grantee (x). A tenant in tail must exercise his powers in respect to waste during the continuance of his estate, for at the instant of his death they cease (y). Chap. IV. Sect. 3. A tenant in tail after possibility of issue extinct, who has Tenant in tail after possibility been once in possession, is in respect of the estate of inherit- of issue extinct. ance, which has been once in him, as dispunishable of waste as a tenant for life, who is made so by express limitation (z); but he may not, any more than a tenant for life dispunishable for waste, commit equitable waste (a). The privileges of tenant in tail after possibility of issue extinct are in respect of the privity of his estate and of the inheritance that was once in him: if, therefore, he conveys his estate to another, such person will be considered as a mere tenant for life (b). A tenant in tail with the reversion in the Crown, and tenant Tenant in tail with the reverin tail under an Act of Parliament which precludes the barring sion of the of the entail have all the legal rights and incidents which Crown. belong to a tenancy in tail, and are dispunishable of waste whether legal or equitable (c). But where the rights and incidents of the tenancy in tail are specially qualified by the provisions of the Statute, the Court may feel bound to interfere to prevent equitable waste (d). (t) See Tullitt v. Tullitt, Amb. 370; Lyddall v. Clavering, ib. 371, n. (u) Hussey v. Hussey, 5 Madd. 44; 21 R. R. 275. See Roberts v. Roberts, Hard. 96. (x) 8 Bac. Ab. 392. (y) Roberts v. Roberts, Hard. 96; Cruise, Dig. tit. ii. c. 1, s. 32. (2) Lewis Bowle's case, 11 Co. Rep. 79 b; Williams v. Williams, 15 Ves. 430; 11 R. R. 357, n.; Turner v. Wright, 2 D. F. & J. 247. (a) Abraham v. Bubb, Freem. ch. 52; 2 Sw. 172, n.; Turner v. Wright, 3 D. F. & J. 247. (b) Co. Litt. 28 a; Rice's case, 3 (c) Att.-Gen. v. Duke of Marl- Chap. IV. Sect. 3. Tenant in fee, subject to executory devise over. Heir by resulting trust. Tenant by lease for lives renewable for ever. Waste by copyholders. A tenant in fee simple, subject to an executory devise over is within the principle of equitable waste, but he is dispunish able of legal waste (e), unless the testator has imposed on him a condition not to commit waste (ƒ). An heir taking by resulting trust until the happening of a contingency, is within the principle of equitable waste (g). Where a tenant for life under a will, who was also appointed executrix" with full and absolute control" over all the testator's property, cut and sold timber, it was held that the will did not make the tenant for life dispunishable for waste, but only entitled her to cut timber in a due course of management for the benefit and preservation of the estate (). The well-known tenure so common in Ireland by lease for lives renewable for ever was considered by Lord Redesdale so much in the nature of a perpetuity, that he refused an application for an injunction to restrain the cutting of timber (i). But Lord St. Leonards, after a review of all the authorities, disapproved of this decision, and held that a lessee for lives renewable for ever is not at liberty to commit destructive waste (j). But he may, it would appear, commit meliorating waste (). He may not, however, commit equitable waste, though he has been made expressly unimpeachable of waste (1). A bill for an injunction against waste will lie at the suit of a copyholder against his lessee (m), of a copyholder in remainder against a copyholder for life (n), or of a copyholder against the lord of the manor (o). So, also, a bill for an injunction against waste will lie at the suit of a lord of a manor against his copyhold tenants (p), or their under-tenants (q), and an interlocutory injunction has been granted, although the answer denied that the lands were copyhold (r). Chap. IV. A mortgagee in possession with a sufficient security may not Waste by mort gagee in possescommit waste (s); and he is bound, so far as the rents and sion. profits in his hands will admit, to do necessary repairs (t). If, however, the security is insufficient, he is entitled, so long as he is acting bonâ fide, to make the most of the property for the purpose of discharging what is due to him. He may cut timber, and open mines or quarries, but he does so at his own risk and peril. If he incurs a loss, he cannot charge it against the mortgagor, and if he obtains a profit, the whole of that profit must go in discharge of the mortgage debt (u). If the security is sufficient, and he has no authority from the mortgagor (x), he will under similar circumstances be charged with his receipts and disallowed his expenses (y). If the mortgage be of an open mine, the mortgagee is entitled to work it as a prudent owner would do, and he is not bound to advance money for speculative improvements (2). Act, 1881. In the case of any mortgage made by deed after the 31st Conveyancing December, 1881, the mortgagee, in the absence of provision to the contrary, may while in possession cut and sell timber and other trees ripe for cutting, and not planted or left standing for shelter or ornament (a). When a mortgagee in possession pending a redemption suit committed waste, he was ordered on motion to deliver up the premises to the mortgagor (b). (p) Richards v. Noble, 3 Mer. 673; 17 R. R. 168; Parrott v. Palmer, 3 M. & K. 632; 41 R. R. 149. (g) Cuddon v. Morley, 7 Ha. 202. (r) Commissioners of Greenwich v. Blackett, 12 Jur. 151. (8) Farrant v. Lovell, 3 Atk. 723; Millett v. Davey, 31 Beav. 470. See, however, C. A. 1881, s. 19, infra. (t) Godfrey v. Watson, 3 Atk. 518; Wragg v. Denham, 2 Y. & C. Ex. 117; 47 R. R. 366; Robbins, 804. (u) Millett v. Davey, 31 Beav. 470; Lord St. Leonards' HandyBook, 117. (x) Norton v. Cooper, 25 L. J. Ch. 121. (y) Thorneycroft v. Crockett, 16 Sim. 445; Hood v. Easton, 2 Giff. 692. (z) Rowe v. Wood, 2 J. & W. 555; 22 R. R. 208. (a) C. A. 1881, s. 19. (b) Hanson v. Derby, 2 Vern. 392. Chap. IV. Waste by mortgagor in possession. A first mortgagee in possession will be restrained from paying over the surplus rents to the mortgagor instead of to the second mortgagee (c). The position of a mortgagor in possession of the mortgaged estate bears no analogy to that of a tenant for life. A mortgagor in possession is in equity the owner of the estate, and may exercise all acts of ownership and may commit waste, provided he does not diminish the security or render it insufficient (d); but if the security is insufficient he may not commit waste (e). In order that an injunction may go against a mortgagor in possession, it must appear on the affidavits that the security is insufficient, or will be rendered insufficient or scanty by the acts of waste complained of (f). The meaning of the term "insufficient" is thus explained by Wigram, V.-C., in King v. Smith (g) :—“ I think the question which must be tried is, whether the property the mortgagee takes as a security is sufficient in this sense-that the security is worth so much more than the money advanced-that the act of cutting timber is not to be considered as substantially impairing the value, which was the basis of the contract between the parties at the time it was entered into." After a decree for foreclosure nisi, a mortgagor in possession will be restrained from committing waste (h). In a case where the mortgagor in possession was bankrupt, but no assignees had as yet been chosen, he was restrained from committing waste (i), but in a case where he was merely in prison for debt the application for an injunction was refused (k). After demand of possession made by the mortgagee, a trustee in bankruptcy of the mortgagor will be restrained from cutting crops and removing crops cut (1). (c) Dalmer v. Dashwood, 2 Cox, 378, 382. (d) Kekewich V. Marker, 3 Mac. & G. p. 329. (e) Farrant v. Lovell, 3 Atk. 723; Humphreys v. Harrison, 1 J. & W. 581; 21 R. R. 238; Harper v. Aplin, 54 L. T. 383. (f) Hippesley v. Spencer, 5 Madd. 422; King v. Smith, 2 Ha. 244. (g) 2 Ha. 244; see Harper v. Aplin, 54 L. T. 383. (h) Goodman v. Kine, 8 B. 379. (i) Hamptony. Hodges, 8 Ves. 104. (k) Humphreys v. Harrison, 1 J. & W. 582; 21 R. R. 238. (1) Bagnall v. Villar, 12 Ch. D. 812. |