At the December term, 1867, of the court of chancery in Orleans county, Steele, Chancellor, delivered the following opinion.
The original bill in this cause was brought to obtain the injunction of the court of chancery to restrain the defendants from committing any waste upon a certain limekiln and machinery [245]*245appurtenant thereto, which, it was alleged, were embraced in mortgages which the orators were foreclosing. On the 23d day of November, 1866, a writ of injunction was granted in accordance with the prayer, and on the 24th it was served upon the defendant Alfred W. Putnam. Since this time the decrees of foreclosure upon the orators’ mortgages have become absolute, the orator Stimpson himself paying the mortgage of the orator Field, which was prior to his mortgage, and now holding an absolute title in himself of the mortgaged property. On the first day of August, 1867, a motion was filed with the court for an attachment for contempt to be issued against the defendant A. W. Putnam, upon the ground that he had violated the injunction by selling and removing a steam-engine, elevator and some other machinery covered by the injunction, and by removing and destroying some of the masonry of the limekiln. On the 1st of August a writ was issued upon which the defendant A. W. Putnam was arrested and brought before the court, and on the 6th of August such proceedings were had that he was released upon proper bonds, and orders were made as to the taking and filing of testimony relative to the alleged contempt. At the December term of court the cause came on for hearing, but, the defendant desiring to take some other testimony, the cause was marked “with the chancellor,” to be heard when this testimony should be taken. On the 18th of February the cause was heard, and has since been held for advisement.
I. No question is made or can be made but the terms of the in-. junction were broad enough to cover the steam-engine, elevator, 'and machinery attached, and no question is made by the defendant A. W. Putnam but they were sold and removed out of the jurisdiction of this court into Canada, with his knowledge and without any objection on his part. So much he admits, and this would be enough to constitute a violation of the order of injunction. The property was in his charge and keeping, and, if he stood by and quietly suffered this waste to be committed, he could not justify himself upon the ground that he did not actively participate in the removal. Nor is there any ground to believe that he did not understand the injunction to cover this property; for it ap[246]*246pears upon tbe docket of tbe December term, 1866, that, oil tbe defendant’s motion, the injunction was modified to permit him to enter and make repairs, and, by consent of parties, a receiver was appointed (who, however, never accepted tbe trust) to sell this engine for tbe benefit of tbe mortgagees. It is quite beyond question, that tbe engine was at that period treated by tbe parties as covered by tbe injunction, and as included in tbe mortgage.
But tbe case does not stand upon tbe fact, which the- defendant admits, that be suffered this property to be removed. He testifies, <£ I bad nothing to do with tbe removing of it or taking it away whatever.” This statement, we are sorry to say, is conclusively shown to be untrue. This defendant bad deeded the property to bis sister, Mrs. Martha Goodell, and a letter from tbe defendant to her, dated February 14,1867, tbe authenticity .of which is not questioned, reveals tbe fact that the defendant planned tbe entire enterprise; and with tbe other correspondence and her testimony, it becomes evident that be not only planned but executed it, and that whatever aid be procured from bis sister was procured by deception. It is entirely clear that Mr. Putnam understood tbe force of this injunction, that in violation of it he made tbe bargain and every arrangement for tbe sale and removal of the engine, elevator, and machinery attached, and that this was done secretly in tbe night-time, and that tbe property is now in Canada and beyond the reach of process from this court, and that be, and no other person, is the guilty party, and tbe only party who expected to reap any pecuniary advantage from this unwarrantable procedure.
Tbe defendant is, therefore, guilty of a contempt, and is liable to punishment by fine or imprisonment, or both, in tbe discretion of tbe court of chancery, whose process be has disobeyed. So far as this liability is concerned, it would be no answer that thé injunction was improperly granted. If improperly granted, the court would dissolve it, on motion and a proper showing of tbe facts; but until dissolved a writ of injunction must be obeyed, no matter bow unreasonable in its terms or unjust in its operation.
II. This proceeding for contempt is instituted not only to punish the guilty party, but also, and perhaps chiefly, to cause resti-[247]*247itution to the party injured. The complainants in this case ayer that, to be made whole, they are entitled to the value of the machinery removed, and to compensation for the other injury to the property which has come into their hands under the decrees of foreclosure. The defendant denies all injury other than the removal of the machinery, and, as to that, says that the machinery did not stand upon the premises mortgaged.
The mortgage deed from Putnam & Saunders to Stimpson, the orator, dated November 1,1864, contains a somewhat intricate description of two pieces of land, and adds: “ Also the buildings standing on the above described land, with all the machinery therein.” This mortgage was given to secure the payment of |3200. It now turns out that the land as described, did not include the whole, and perhaps included no part, of the land upon which the machinery which was removed, was then standing. If this was all that appeared, it would show that the injunc'tion was improperly granted, so far as this machinery is concerned, ;and that, however guilty the defendant may be in violating it, the orator would have suffered no wrong. But this is not all that ap.pears. It appears by the testimony of Mr. Saunders, who was a partner with Mr. Putnam, and united with him in mortgaging the property to Stimpson, that the boiler, engine and elevator were ¡then set up, and were intended and supposed by the parties to be embraced in the mortgage. It appears by the mortgage deed, that Saunders & Putnam mortgaged not’ only the limekiln property, but also a steam-tug, called the “ Stars and Stripes.” It is hardly to be supposed that they embraced this loose property, ¡and intended to except a part of the very machinery by which the limekiln was to be run. It also appears from the testimony cf Stimpson, that he so understood the mortgage, and that Saunders & Putnam pointed out the lines and boundaries in such a way -•as to include this machinery and the shed in which the engine was placed. This land was purchased by Putnam and by Saunders Putnam of S. M. Field. The testimony of Mr. Field and Mr. Ulough tends to show -.that the purchases made before the Stimp-•son mortgage, were understood by the parties to cover the ground ¡upon which the engine stood.
[248]*248All this testimony is entitled to additional force, from tbe fact that at the December term, 1866, the parties consented to treating this engine as property mentioned in the mortgage, and to be sold to apply toward its satisfaction, and made their entry upon the docket accordingly.
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At the December term, 1867, of the court of chancery in Orleans county, Steele, Chancellor, delivered the following opinion.
The original bill in this cause was brought to obtain the injunction of the court of chancery to restrain the defendants from committing any waste upon a certain limekiln and machinery [245]*245appurtenant thereto, which, it was alleged, were embraced in mortgages which the orators were foreclosing. On the 23d day of November, 1866, a writ of injunction was granted in accordance with the prayer, and on the 24th it was served upon the defendant Alfred W. Putnam. Since this time the decrees of foreclosure upon the orators’ mortgages have become absolute, the orator Stimpson himself paying the mortgage of the orator Field, which was prior to his mortgage, and now holding an absolute title in himself of the mortgaged property. On the first day of August, 1867, a motion was filed with the court for an attachment for contempt to be issued against the defendant A. W. Putnam, upon the ground that he had violated the injunction by selling and removing a steam-engine, elevator and some other machinery covered by the injunction, and by removing and destroying some of the masonry of the limekiln. On the 1st of August a writ was issued upon which the defendant A. W. Putnam was arrested and brought before the court, and on the 6th of August such proceedings were had that he was released upon proper bonds, and orders were made as to the taking and filing of testimony relative to the alleged contempt. At the December term of court the cause came on for hearing, but, the defendant desiring to take some other testimony, the cause was marked “with the chancellor,” to be heard when this testimony should be taken. On the 18th of February the cause was heard, and has since been held for advisement.
I. No question is made or can be made but the terms of the in-. junction were broad enough to cover the steam-engine, elevator, 'and machinery attached, and no question is made by the defendant A. W. Putnam but they were sold and removed out of the jurisdiction of this court into Canada, with his knowledge and without any objection on his part. So much he admits, and this would be enough to constitute a violation of the order of injunction. The property was in his charge and keeping, and, if he stood by and quietly suffered this waste to be committed, he could not justify himself upon the ground that he did not actively participate in the removal. Nor is there any ground to believe that he did not understand the injunction to cover this property; for it ap[246]*246pears upon tbe docket of tbe December term, 1866, that, oil tbe defendant’s motion, the injunction was modified to permit him to enter and make repairs, and, by consent of parties, a receiver was appointed (who, however, never accepted tbe trust) to sell this engine for tbe benefit of tbe mortgagees. It is quite beyond question, that tbe engine was at that period treated by tbe parties as covered by tbe injunction, and as included in tbe mortgage.
But tbe case does not stand upon tbe fact, which the- defendant admits, that be suffered this property to be removed. He testifies, <£ I bad nothing to do with tbe removing of it or taking it away whatever.” This statement, we are sorry to say, is conclusively shown to be untrue. This defendant bad deeded the property to bis sister, Mrs. Martha Goodell, and a letter from tbe defendant to her, dated February 14,1867, tbe authenticity .of which is not questioned, reveals tbe fact that the defendant planned tbe entire enterprise; and with tbe other correspondence and her testimony, it becomes evident that be not only planned but executed it, and that whatever aid be procured from bis sister was procured by deception. It is entirely clear that Mr. Putnam understood tbe force of this injunction, that in violation of it he made tbe bargain and every arrangement for tbe sale and removal of the engine, elevator, and machinery attached, and that this was done secretly in tbe night-time, and that tbe property is now in Canada and beyond the reach of process from this court, and that be, and no other person, is the guilty party, and tbe only party who expected to reap any pecuniary advantage from this unwarrantable procedure.
Tbe defendant is, therefore, guilty of a contempt, and is liable to punishment by fine or imprisonment, or both, in tbe discretion of tbe court of chancery, whose process be has disobeyed. So far as this liability is concerned, it would be no answer that thé injunction was improperly granted. If improperly granted, the court would dissolve it, on motion and a proper showing of tbe facts; but until dissolved a writ of injunction must be obeyed, no matter bow unreasonable in its terms or unjust in its operation.
II. This proceeding for contempt is instituted not only to punish the guilty party, but also, and perhaps chiefly, to cause resti-[247]*247itution to the party injured. The complainants in this case ayer that, to be made whole, they are entitled to the value of the machinery removed, and to compensation for the other injury to the property which has come into their hands under the decrees of foreclosure. The defendant denies all injury other than the removal of the machinery, and, as to that, says that the machinery did not stand upon the premises mortgaged.
The mortgage deed from Putnam & Saunders to Stimpson, the orator, dated November 1,1864, contains a somewhat intricate description of two pieces of land, and adds: “ Also the buildings standing on the above described land, with all the machinery therein.” This mortgage was given to secure the payment of |3200. It now turns out that the land as described, did not include the whole, and perhaps included no part, of the land upon which the machinery which was removed, was then standing. If this was all that appeared, it would show that the injunc'tion was improperly granted, so far as this machinery is concerned, ;and that, however guilty the defendant may be in violating it, the orator would have suffered no wrong. But this is not all that ap.pears. It appears by the testimony of Mr. Saunders, who was a partner with Mr. Putnam, and united with him in mortgaging the property to Stimpson, that the boiler, engine and elevator were ¡then set up, and were intended and supposed by the parties to be embraced in the mortgage. It appears by the mortgage deed, that Saunders & Putnam mortgaged not’ only the limekiln property, but also a steam-tug, called the “ Stars and Stripes.” It is hardly to be supposed that they embraced this loose property, ¡and intended to except a part of the very machinery by which the limekiln was to be run. It also appears from the testimony cf Stimpson, that he so understood the mortgage, and that Saunders & Putnam pointed out the lines and boundaries in such a way -•as to include this machinery and the shed in which the engine was placed. This land was purchased by Putnam and by Saunders Putnam of S. M. Field. The testimony of Mr. Field and Mr. Ulough tends to show -.that the purchases made before the Stimp-•son mortgage, were understood by the parties to cover the ground ¡upon which the engine stood.
[248]*248All this testimony is entitled to additional force, from tbe fact that at the December term, 1866, the parties consented to treating this engine as property mentioned in the mortgage, and to be sold to apply toward its satisfaction, and made their entry upon the docket accordingly. Upon this question of the intention and understanding of the parties, the defendant offers no testimony which tends in any substantial respect to contradict the evidence on the part of the orators. We are satisfied that both parties intended this mortgage of Saunders & Putnam to Stimpson, to cover the engine, boiler and elevator, and that both parties, until quite recently, supposed it did, and that the deed ought to have been so written; and equity will treat that as having been done which should have been done. Suppose that the defendant Putnam, at the December term, 1866, instead of consenting to a sale upon the mortgage as he did, had moved that the injunction be dissolved, so far as the engine was concerned, and had alleged the facts in his motion, viz.: that by mistake the mortgage deed was so written as not to cover the land upon which the engine stood, but that he and Mr. Saunders intended to mortgage that machinery, and supposed they had. Would a court of chancery have dissolved the injunction? We think not. On the other hand, if the orators, when applying for the injunction, had stated that the shed in which the engine stood, was not covered by the mortgage, but that the omission was by mistake, the injunction would, nevertheless, have been granted. The injunction, therefore, instead of being granted improperly, was no more than was required to preserve the equitable rights of the orators. The defendant can stand no better in this proceeding, than he would upon a- motion to dissolve, upon the same state of facts. So far as this proceeding is concerned, it is the duty of the court to treat this mortgage, and the decree upon it, precisely as the parties treated it and understood it and meant it; that is, as covering the machinery. There is no necessity, as the facts stand, that the orators should file any supplemental bill to enable them to hold in equity the value of this property which the defendant has detached from the freehold. If they desired, by a proceeding in equity, to.perfect a record title at law to the freehold, they might then be; [249]*249forced to original or supplemental proceedings to reform the-, deed and decree.
We have estimated the entire loss of the orators as follows, guided considerably by the testimony of the defendant on the subject: engine and boiler, $750; elevator, etc., $250; other injuries, $100; interest, $70; in all, $1170; and have concluded that the defendant A. W. Putnam should be held to that extent responsible to the orators to make them whole, and that he be decreed to pay that sum to the clerk for the benefit of the orators. We do not feel at liberty entirely to pass over the liability of the defendant to punishment, but, in consideration of the fact that he has failed in business and is comparatively without means, and that, this whole enterprise carries with itself its own punishment, by the pecuniary loss he must suffer in complying with the decree we have made, and being entirely satisfied that he intended no actual contempt for the court or any of its officers, we have concluded to punish him with much less severity than the offense would seem to warrant, viz.: by a fine of $50.
The docket entry is, the said Alfred W. Putnam is adjudged guilty of a contempt, and ordered to’pay to the clerk for the orators $1170 and costs of these proceedings, and interest from April 7, 1868, and also the sum of $50 as a fine, to! be paid to the treasury of the state, and to be committed to jail until the said several sums are paid.
Decree and warrant issued accordingly.