
    *Scott v. Wharton.
    June Term, 1808.
    Waste — When Vendor of .Laud May Have Injunction against. — An Injunction to stay waste ought not to he granted to a vendor against a vendee to whom he has sold a tract of land in fee-simple, retaining the title as a security for the purchase money; unless he brings his suit to subject the land to the payment of the purchase money, and charges the defendant with cutting and selling timber in a manner calculated to render the land an incompetent security, in which case such injunction to stay waste pending the suit may be awarded.
    This was an application for an injunction to stay waste. The bill stated that the plaintiff sold to the defendant a tract of land in fee-simple, but retained the title, as a security for the purchase-money. The defendant took possession thereof according; to his contract, and was charged with cutting and selling timber.
   PRR CURIAM.

Waste is an action which accrues to a tenant in remainder or reversion, against a tenant in possession, or to one tenant in common against another, for any destruction of the estate, either in houses, woods, or lands; pending which action at law, a court of equity may award an injunction to prevent the farther commission of waste, until it is determined; or, if the court of equity should grant the injunction in the first instance, it would direct an issue to try the waste, and, upon the verdict’s being certified, would put an end to the controversy. It follows, therefore, that no person is entitled to an injunction to stay waste, unless he can maintain an action at law for it; which the plaintiff in this case could not do, because he has parted with all his interest, and only holds the title as a security for his money : he stands in the situation of a mortgagee out of possession ; and although, in general, a mortgagor, in possession, is not liable for profits, because the mortgagee may avail himself of his legal remedy to get into possession, yet, pending that remedy, or a suit to foreclose, should it appear that the mortgagor, by his conduct, was likely to lessen the mortgagee’s security, this Court ought to restrain him in such conduct : but nothing of this sort appears in the case before the Court, and the injunction must be denied.

On another day in this term the plaintiff filed another bill against the defendant to subject the land to the payment of the purchase-money ; and charged the defendant with cutting and selling timber in a manner calculated to render the land an incompetent security, to prove which several affidavits were filed ; and the injunction was awarded.  