Opinion
No. 28658.
May 5, 1930.
1. EQUITY.
On demurrer, court must construe bill most strongly against pleader.
2. MORTGAGES.
First mortgagee, not alleging value of land or that construction of power line depreciated value, held not entitled to have amount which owner received from power company and paid to second mortgagee delivered to first mortgagee to be held in trust.
3. EQUITY.
Court of equity does not take cognizance of injuries which are only nominal.
APPEAL from chancery court of Lincoln county. HON. V.J. STRICKER, Chancellor.
P.Z. and R.L. Jones, of Brookhaven, and Wells, Jones, Wells Lipscomb, of Jackson, for appellant.
A mortgagee has the right to restrain the commission of waste if it impairs his security, and it is impaired by acts which render the security insufficient for the satisfaction of the debt or of doubtful sufficiency.
Beavers Lumber Co. v. Eccles, 43 Or. 400, 73 P. 201, 99 Am. St. Rep. 759; Moriarty v. Askworth, 43 Minn. 1, 19 Am. St. Rep. 203, 44 N.W. 531; King v. Smith, 2 Hare, 239, 244; Coker v. Whitlock, 54 Ala. 180; Buckout v. Swift, 27 Cal. 433, 87 Am. Dec. 90; Harris v. Bannon, 78 Ky. 568.
A mortgagee has a right to his security unimpaired and he may maintain an action for waste or damages in his own name, either against the mortgagor or a third person, although the security remains ample for his protection.
Delano v. Smith, 206 Mass. 365, 92 N.E. 500; Gooding v. Shea, 103 Mass. 360, 4 Am. St. Rep. 563; Bank of Hevelock v. Western Union Telegraph Co., 141 Fed. 522; Stevenson v. Lord, 25 P. 313.
Brady, Dean Hobbs, of Brookhaven, for appellees.
The demurrer was properly sustained because appellant did not charge in its bill of complaint, as amended, that the sufficiency of its security had been impaired.
19 C.J., p. 623; 19 R.C.L., 322-3.
Green, Green Potter, of Jackson, for appellees.
Nowhere is it averred in the bill that the debt will not be paid at maturity, nor is it averred that Bonfiglio is insolvent. Nowhere is it averred that the construction of this power line did not enhance the value of the property.
Appellant had a first mortgage on the lands in question, and the Brookhaven Bank Trust Company, one of the appellees, had a second mortgage. Without the consent of the owner of the land, that is to say, the mortgagor, and without the consent of either of the mortgagees, the appellee power and light company entered upon the land and constructed across it a power line and in doing so cut and destroyed timber to the value of not less than six hundred dollars. The owner instituted an action at law against the said power company for the trespass aforesaid which was settled with the owner at an agreed amount of six hundred dollars, and this was paid to the second mortgagee. The appellant, first mortgagee, thereupon instituted suit in equity demanding that the said sum be delivered over to it, to be held in trust against the annual maturities of the installments due under its deed of trust, running through a period of thirty-five years.
The deed of trust held by appellant is for one thousand six hundred dollars. There is no allegation in respect to the value of the land against which the deed of trust stands, and so far as the bill shows the said land may be worth twenty-five thousand dollars. Moreover, there is no sufficient allegation that as a matter of fact the construction of the power line across the land, and its situation thereon, as same presently exists, has actually depreciated the aggregate value of all the property which is now embraced in the security. Construing the bill strongly against the pleader, as must be done of course, the most that we have before us, of which appellant complains, is a technical wrong to it, without injury in fact. And since a court of equity does not take cognizance of injuries which have no real substance and are only nominal, the demurrers were properly sustained.
Affirmed.