
    JOSHUA BRICK ET AL. v. JOHN GETSINGER ET AL.
    1. A large tract of pine land, owned in connection with a glass-factory, for the ordinary uses and purposes of which the owners, from time to time, cut wood from the pine land, was mortgaged. After the giving of the mortgage, a fire swept over a largo portion of the tract, killing the timber standing on it. The mortgagors commenced cutting down the burnt timber, proposing to cut it all down, alleging that it was necessary to do so, as well to save the wood from rotting, as lor the permanent benefit of the estate in reference to the new growth. The mortgagees filed a bill and obtained an injunction against the cutting. The bill did not pray a foreclosure, the whole money not being then payable. On answer, stating the facts as to the burning, and the propriety of felling the burnt timber, and offering to give other security for an amount equal to the value of the burnt wood which the mortgagors proposed to cut, a reference was ordered to ascertain such value, with a view of directing such security to be given.
    2. It was said by the Chancellor, that if- a large proportion, in value, of pine wood-land, mortgaged, he burnt over, and it be proper, to save the burnt wood from rotting, and for the permanent benefit, of the estate, in reference to the now growth, that the burnt wood be cut off — the land being worth but little, without wood on it — it would be right that the burnt wood so cut should be applied towards' paying the mortgage.
    On the 16th of August, 1845, John Getsinger and Joseph Getsinger gave to the complainants their bond, conditioned for the payment of $11,755.23, in two equal payments, at six and twelve months, with interest, and, to secure the payment of the bond, gave to the complainants a mortgage of the same date, on the glass-factory buildings and lots in Port Elizabeth, Cumberland county (describing them), containing ten acres; a lot of 39 acres, a loi of 315 acres, a lot of 45 acres, a lot of 50 acres, a lot bought of Samuel Compton, by deed of May 24th, 1833; a lot of 315 acres, a lot of 148 acres, a lot of 23 acres, a lot of 101 acres, a lot of 193 acres, a lot of 5 acres a lot of 10 acres, a lot of 20 acres, a lot of 102 acres, a lot of 425 acre», a lot of 100 acres, a lot of 18 acres, a lot of 38 acres, a lot of 10 acres, a lot of 10 acres, a lot of 23 acres, a lot of 350 acres, a moiety of a lot of 171 acres — all in the township of Maurice River, in said county; and a lot of 200 acres, and a lot of 380 acres, in the township of Millville, in said county; and a lot in Port Elizabeth, of a quarter of an acre.
    The bill states that $1437.39 of the principal was paid on the 14th of February, 1846, and that $4418.40 of the principal and interest of the first payment is due, by reason of which the estate mortgaged has become absolute, subject only to the equity of redemption.
    On the 6th of February, 1846, the Getsingers and their wives, for $1250, stated, in the deed, to be the consideration therefor, sold and conveyed the mortgaged premises to Charles Townsend, of Maurice River, and George B. Cooper, of Philadelphia. The bill charges that the premises consist, in part, of woodland, covered with wood and timber, growing thereon, and that, without the wood and timber, the complainants’ security is greatly weakened and diminished, and that, since the conveyance to Townsend and Cooper, they and their workmen have cut down and carried off from the premises a large quantity of wood and timber; that there is still standing on the premises, a large quantity of timber and trees, and that Townsend and Cooper intend to cut down and carry away the same.
    The bill prays that Townsend and Cooper may be restrained from cutting down or removing from the premises any wood or timber growing thereon, or from removing from the premises any of the wood or timber already cut down, and from commit- ■ ting any further waste. The bill does not pray a foreclosure or sale.
    The joint and several answer of the defendants has been put in, in which the Getsingers say that the bond and mortgage was given, not for money loaned or property bought, but, in part, to secure debts to some of the mortgagees; and, in part, to indemnify the mortgagees, or some of them, against notes or securities on which they, or some of them, were liable, and that, as they have reason to believe, the actual amount due will, on a just and proper account, fall short of the nominal amount of the bond and mortgage., The defendants 'deny that only $1437.39 has been paid, and say that, on the 17th of November, 1845, the Getsingers gave to Lee and Bailey, two of the complainants, a judgment bond for $2433.43, on which judgment was entered, and tl %t 'vxecution was issued on the judgment, and that the execution was paid in full before the bill was filed ; and they insist that the sum included in the judgment and execution, was for the same debt included in the mortgage, and is to be deducted therefrom. The Getsingers say that on the 28th January, 1845, and after the said execution was in the hands of the sheriff, they had shipped, on board a schooner lying in Maurice river, 701|- boxes of glass to their agent in New York, and Brick, one of the complainants, told John Getsinger that the sheriff had seized or would seize said glass on the said execution, and obtained from the said John an order for the glass; and that the complainants, or some of them, obtained the glass on that order, and have since sold it; and John says he is unable to read English, and does not know precisely what the order contained, but he says it was obtained from him on the representation that the value of it should be applied in payment of said execution, and that Bickley, one of the complainants, expressly promised him it should go towards the execution; and the defendants say the glass was worth $1028, for which the defendants insist they are entitled to credit on the bond and mortgage. The defendants admit the conveyance from the Getsingers to Townsend and Cooper for $1250, subject to the mortgage. They say that the mortgaged premises consist of the glass-works and lots on which they are situated, at Port Elizabeth, in Cumberland county, and of sundry lots and tracts of land in that county, which have been bought from time to time for the use of the glass-works, comprising in the whole about 3000 acres, the great portion of which is woodland, on which is timber and wood growing, much of which is fit for use, and the residue is of younger growth. That the motive which induced the purchase of so many tracts of land, was to secure a sufficiency for the permanent supply of the glass-works; that lest the consumption should at any time exceed the natural increase, it was the habit of those carrying on the works heretofore, to purchase a quantity of wood occasionally, in addition to that procured from the property ; and the defendants, Townsend and Cooper, say they intend to pursue the same course; and they further say that if without such aid the natural growth of the wood and timber should be insufficient to afford a permanent supply, there is wood and timber enough on the property to supply the demand for at least three years, without the purchase of any additional timber land. That of the said property, about 300 acres of wood and timber land were, in the spring of 1845, overrun by fire, which greatly injured and destroyed the growing wood; and that when enjoined from cutting, they were engaged with their workmen in cutting and felling part of the wood which had been thus injured and destroyed by fire; that they had cut about 25 acres of the same, and were using the wood for the ordinary purposes of the glass-works, and not committing any waste upon the property; that the burnt wood is unfit for market, and can be advantageously applied to no other purpose than supplying glass or iron-works; and that it is of great importance to the property, and the owners thereof, that the same should be cut without delay; that the greater part of the wood on the land burnt is pine, which, after being affected with fire, soon decays and falls, and is seldom worth cutting after the second summer. That the residue of the wood and timber on the burnt land is principally oak, which by reason of the fire becomes very hard, and continues so till it begins to decay. That about the second-summer after the fire, the young scions begin to grow up from the roots, and the trees begin to decay, and afterwards to fall; and if not cut before they fall, the scions will be greatly injured if not destroyed by the falling of the timber. That the intention was to cut off the said burnt timber, so as to prevent its further decay and injury, and to apply it to the ordinary use of the glass-works, as they apprehend -they had a right to do. That they were not cutting, nor did they intend to cut, on any other portion of the property at this time ; and that to continue the injunction would be injurious to the defendants and to the property. That at the time the mortgage was given, the premises were used for the purposes of- a glass factory; that the glass-works were on the premises at the time, and were and had been in operation at and before the mortgage was given; and that the mortgage was taken with the express understanding and knowledge that the mortgaged property was then used, and would continue to be used, for making glass; and they submit that as long as they continue to use the property in this way, and as all prudent owners would do under like circumstances, they cannot be considered as committing waste, or impairing the security of the complainants; and they deny that they have any intention to do so. On the contrary, they insist that it would be for the benefit of all parties that the said wood should be cut down and removed without delay, and that it would be better to give it away than to suifer it to remain in its present condition. They say that it is a great injury and inconvenience to them to be deprived of the use of the wood and timber at this time; that their furnace is in blast, and they are now obliged to purchase, at great loss, wood to supply their fires, or suifer great loss from the blowing out of the furnace. That they have committed no waste, unless the cutting aforesaid may be considered waste, which they deny; and that they do not intend to commit any waste, or to cut down or carry away any timber or trees, except for the purposes aforesaid. They deny that the cutting and using the wood and timber so burnt and injured would, in any wise, diminish the security of the complainants, but say that, to suifer the same ro remain, would do so, more especially if living and growing wood and timber had to be taken for the use of the works; and they insist that if, by reason of the mortgage, no wood or timber whatever can be cut on the property for the use of the glass works, the value of the property will be materially diminished. That, since the payment admitted by the bill, without any allowance for payments claimed by the defendants, the property is now a better security for the amount due, as stated by the bill, than it was when the mortgage was given. That they have no desire or intention to aifeet the security of the complainants, but are desirous of prosecuting their legitimate business in the ordinary way; and that, rather than suffer the inconvenience and loss that must result to them from remaining in their present situation, they are willing to give, and offer to give, under the direction of the court, undoubted security for the payment of such sum as, on a fair and proper adjustment, may appear to be due on the bond and mortgage.
    On this answer a motion was made to dissolve the injunction.
    
      P. D. Vroom, for the motion.
    
      W. Halsted, contra.
   The Chancellor.

I think there is no ground for apprehension that the defendants have any design to lessen the security of the complainants by waste or improper cutting. The difficulty in the case has arisen, no doubt, from the fact that three hundred acres of the woodland has been burnt over, and the wood and timber standing thereon greatly injured. The defendants say it was their intention to cut off the wood and timber from this burnt district of three hundred acres; and that it ought to be cut off, as well to prevent its loss by decay, as for the benefit of the property. I am not informed by the bill or answer how much wood the glass-works ordinarily use in a season, nor of the value of the wood as it now stands on the burnt district; nor can I say with certainty that the residue of the property is sufficient to pay the mortgage.

If a large proportion in value of pine woodland mortgaged be burnt over, and it be proper, to save the wood and for the benefit of the land, that the burnt wood be cut off, the lands themselves being worth but little without wood on them, it would be right that the wood so burnt and cut should be applied towards paying the mortgage.

' In the absence of more particular information, it seems to me it would be safe for the court — regard being had to the rights of the mortgagees- — to avail itself of the suggestion of the defendants Townsend and Cooper, so far as to direct security to be given by them for an amount equal to the value of the burnt wood which they propose to cut. To that end, a reference will V ordered, to ascertain the value.

Order accordingly.

Cited in Coggill v. Milburn Land Co,, 10 C. B. Gr. 92.  