Robinson v. Russell

24 Cal. 467

• Court: California Supreme Court
• Decided: July 1, 1864
• Status: Published

Opinion

By the Court, Rhodes, J.

The object of this action was to procure an injunction, restraining the defendants from removing from “ Smith’s Car-dens” certain growing trees and vines, and a steam engine and pump erected to irrigate the land, and restraining the defendant Bugbey from paying over to the other defendants certain money in his hands, which it was agreed represented certain fruit sold by him from the gardens. The Court below found all the material issues of fact for the defendants, and rendered judgment in their favor.

The Court found, among other things, that the defendants had not removed and did not intend removing from the premises anything besides the growing fruit and the nursery trees and vines which had been attached by the Sheriff at the suit of the other defendants. There was some conflict in the evidence in relation to the matters included in that finding, but we think there was sufficient evidence to authorize the Court to arrive at the conclusion stated.

The first and most obvious point presented in the case, and one that is decisive of this appeal, is that the whole case, as made by the allegations and proofs, does not present such a cause as entitles the plaintiff to relief in equity, or to the process of injunction to restrain the defendants from the commission of the injuries complained of. The plaintiff claims that he is a “ mortgagee in possession” of the premises, and insists that by reason of that relation he possesses some further right or interest in the land than he had as a simple mortgagee, but he does not allege or prove that the mortgagor had conveyed to him any interest in the premises other than the lien which he acquired by the mortgage. He alleges and proves merely that the mortgagor let him into possession. It was recently held by this Court that the entry of the mortgagee into the possession of the premises could not invest him with any other or greater right than he would have had without such entry. (Cunningham v. Hawkins, 24 Cal. 403.) The term “ mortgagee in possession” is unknown to the law regulating the rights of parties to a mortgage in this State. It signifies no more than would the term “ creditor in possession.” The plaintiff is to be treated simply as a mortgagee of the premises, and will be restricted to the rights and remedies pertaining to that relation.

There can be no doubt but that an action can be maintained by the mortgagee for injuries of the character set forth in the complaint in this case, when it appears that by the acts complained of the mortgage security is impaired. This is clearly shown in Yates v. Joyce, 11 J. 136, Lane v. Hitchcock, 14 J. 213, and Gardner v. Heartt, 3 Denio, 232, cited by the appellant’s counsel, and more fully in Van Felt v. McGraw, 4 Comst. 110. But all those were actions on the case for the wrongful and fraudulent injury committed upon the premises, whereby the mortgagee’s security was impaired. There can be as little doubt that the mortgagee may, by injunction, stay the commission of waste upon the mortgaged premises, when he makes a proper case in equity and shows that the commission of the threatened acts will materially impair the value of the property subject to the lien so as to render it an inadequate security for the mortgage debt.

In the case before us, the acts of the defendants, committed or intended to be committed, as found by the Court, consisted in the removal of the pendant fruit and the growing nursery stock. Injuries resulting from such acts are not irreparable. Full and adequate damages could be recovered in an action for the trespass, if the acts bring the case within the rule laid down in Van Felt v. McGraw. The doing of these acts does not materially impair the value of the inheritance—the substance of the realty. It is not' stated that the defendants are insolvent or unable to respond in damages for the alleged or threatened injury. The plaintiff, therefore, is not entitled to relief in equity. (2 Story’s Eq. Juris., Sec. 925 ; Burnett v. Whitesides, 13 Cal. 156 ; Hanson v. Gardner, 7 Yes. 305, note.)

Judgment affirmed.