
    *Thompson Mayo v. Jacob and Andrew Feaster.
    None but those entitled to the inheritance can sue for waste. The court will not construe words renouncing dower according- to the act, to mean inheritance. The formalities to release inheritance by a feme covert must be complied with. The court cannot give to a deed a more extended operation than the natural and legal import of the words authorize. A mistake in a deed cannot be corrected in a collateral way. There must be a bill hied between the parties to the deed to correct a mistake. A remainder-man for life only cannol sue for waste. It can only be supported by one entitled to the inheritance. A contingent interest is not sufficient. But a remainder-man for life may have an injunction for immediate injuries to his estate.
    John Mayo, by his last will and testament, dated the 10th of April, 1S16, loaned to his wife Elizabeth, during her widowhood, the whole of his estate, both real and personal; and after her widowhood directed the same to be equally divided between his six children, to wit: Mourning Floycl, the wife of- Floyd, Sarah Mayo, Richardson Mayo, Thompson Mayo, John Mayo, and Nancy Mayo. John Mayo, the eldest, died on the 17th of November, 1817. Part of the property loaned to Elizabeth Mayo was a tract of land, containing about two hundred and seventy-two acres. Thompson Mayo, the defendant, resided with his father and mother at the time of the death of his father, and for several years previously, as they were both too old to attend to their own concerns without the assistance of defendant, who also during that time worked his own slaves upon the lands loaned to his mother. On the 27th of May, 1818, defendant and his mother entered into a written agreement respecting the estate loaned to her by her husband; by virtue of which, and in consideration that defendant would, from time to time, afford her a comfortable support until her death, she authorized and permitted him to use, occupy, and enjoy the profits of all the property loaned to her during her life by her husband, as aforesaid. Under this agreement the defendant cultivated part of the old lands, and newly cleared about thirty acres on other parts of the tract. Sarah Mayo, one of the distributees in remainder, afterwards married Albert Beam; and Nancy Mayo, another of the distributees, married James Mayo, a cousin of hers. Albert Beam and wife conveyed their interest in the land to the complainant,* Andrew Feaster; and James Mayo and wife conveyed their interest in the land to the complainant, Jacob Feaster. The conveyances were signed by both wives respectively; but they only renounced their right of dower in the land, instead of inheritance. The bill was filed by the complainants to restrain the defendant from committing waste. The injunction was granted.
    At the next succeeding court after the service of the injunction on defendant, complainants’ counsel moved for an attachment against the defendant for a contempt of the injunction, in continuing the waste, cutting trees, &c. On this motion, the defendant’s counsel moved that the case should be referred to the commissioner to ascertain the waste committed by the defendant, both before and after the injunction.
    The commissioner reported, and to his report the defendant filed several exceptions, among which were the following, to wit:
    That the commissioner had not allowed defendant any compensation for the improvements made by him on the land.
    That the complainants were not entitled to an account for waste, in the capacity in which they stood; nor was the defendant answerable for waste in the capacity in which he acted.
    June, 1825. DeSaussure, Chancellor. Two objections were raised on the argument, which it is necessary to consider and decide.
    1. Whether the complainants are entitled to relief? Upon this I have no doubt. The complainants have a title derived from two of the heirs, for their shares of the estate. But it is objected that these two heirs being females and married, though they joined in the conveyance, did not not renounce their inheritance to these complainants, who consequently could not sue. This *seems to have been a mere mistake. But at any rate the purchasers have a life estate, even under the erroneous deed ; and they being remainder men, have, a right to the protection of the court against the present occupants for life, if waste has been committed.
    2. It is said that the defendant was not liable to be enjoined and restrained from committing waste ; nor was he answerable for the same, as he held under the tenant for life, the widow of the testator. The law on this subject is very plain. The tenant for life is entitled to cultivate all the cleared lands at the death of her husband : and to the use of so much of the timber as may be necessary for fencing, firewood and repairs of the buildings. And it must be admitted that if the present occupant or tenant for life had no right to cut down timber and clear land in his lawful possession for cultivation, he cannot transmit to others a right to do so, which ho had not himself. The defendant claims under the widow who has a life estate; and his clearing land is waste in him, as it would have been in her; and he can and must be restrained. Indeed the commissioner reported that the defendant had cultivated less than the cleared land left by the testator; so that there was no necessity for clearing more land, except to obtain new lands for planting, which he had no right to do.
    It was argued that joint tenants, or tenants in common, could not sue each other for waste; but this is not the case of a tenancy in common. It is the case of a tenant for life ; and remainder-men or persons who have purchased from the remainder-men, it was never doubted, could restrain the tenant for life from committing waste. The defendant is not entitled to improvements made on the land for his own benefit, though those benefits may survive his life estate. As to the details, I am satisfied that the intelligent commissioner who made the report, is better informed than I am, and, of course, better able*t0 form a correct judgment. I am, therefore, of opinion that the report ought to be confirmed and the exceptions overruled, and it is ordered and decreed accordingly ; and that the injunction be continued for restraining the defendant from commiting waste.
    From this decree the defendant appealed on the grounds taken against the commissioner’s report, and that the injunction should not have been made perpetual.
    Clarke for the appellant.
    1. The deed to complainants being informal conveys no more than the life estate of the husband. 2 Const. Rep. 12. An intermediate remainder-man for life cannot have an account for waste; that only belongs to the remainder-man in fee. Eden on Injunction, 118. The reason may be that the remainder-man in fee may have the account, and both cannot, and that is the law although the fee has vested, if it can be defeated by a subsequent contingency. 3 P. Wins. 268. Eden on Injunction, 117. In this case if the husband died before the life estate was determined, the complainant’s interest never would have vested. 3 Black. Comm. 225. Before the statute of Marlbridge, the tenant for life could not be restrained when he came in under an act hi páis, and only when he came in by operation of law, as tenants in dower by curtesy, &c.., and under that statute, from which our act has been copied, tenants for life or years only are affected. Under the contract between defendant and his mother, he was only tenant at will; the mother, therefore, and not defendant, was liable; and she ought to have been made a party.
    2. Again, complainants admitting their claim to the fullest extent, are only entitled to two sixths, and their claims for waste ought to be apportioned accordingly ; and the report and decree give the whole.
    *Pearson, contra.
    The deeds to complainants are signed by the wives, and they renounce all their estate as well as dower; the first includes inheritance. It is true that the certificate does not state according to the act of 1795, that it was made seven days after the execution of the deed. But the intention is apparent and must prevail. 1 Fonbl. 37. 13 Yes. 114. This would be a good conveyance at common law. The act does not take away the common law mode of conveyance but substitutes another, so that the common law conveyance is good. Bac. Abr. Baron and Feme. 1 Madd. Cha. 479. Equity will enjoin waste by the tenant of the freehold. 1 Madd. Cha. 114, 122. 2 Brev. Dig. 331. Smith v. Poyas, 2 Desaus. Rep. 65.
   Curia, per

Nott, J.

The first question to be determined in this case is the nature of the estate which the complainants have in the land in question. They purchased of the husbands of two of the female devisees. The husbands had only a life estate in the inheritance of their wives ; and therefore could convey no more to the complainants. The act of 1795 has prescribed a method by which married women may renounce their dower, as also their right of inheritance. In this case, the form prescribed for the renunciation of dower has been pursued. It is now contended, that the words used in the conveyance are broad enough to transfer the inheritance. Admitting that they will bear that construction, yet, as they are the very words which the act has directed to be employed in a renunciation of dower, we cannot by construction extend their meaning beyond the object required by the tenor of the act. And such construction seems necessarily to follow from the subsequent clause of the act which gives the words necessary for the renunciation of the inheritance. There are also other provisions superadded in the act, in order to*give effect to such a conveyance. These provisions are intended as a protection to the rights of married women. The legislature has placed these guards around them in order to prevent their rights from being invaded. And this court would fall very far short of fulfiling the intentions of the legislature, were they to break down those barriers which have thus been erected for their defence. It is not necessary, however, to dwell upon this part of the case, as the question has already been fully considered and decided in the case of Brown and Spann, 2 Const. Rep. Treadw. 12. It is said that the form of renunciation adopted in this case was used by mistake, and that it was intended to convey the inheritance. I do not know how that fact may be, nor is it important to the discussion of the case. We cannot give to the deed a more extended operation than the natural and legal import of the words will authorize. It may be, that the mistake was in supposing that they had only a right of dower in the land. They may have been willing to have renounced such a right, and not the right of inheritance. If there has been any mistake it may, perhaps, be corrected, but it cannot be done in this collateral way. It must be by a direct application to the court for that purpose, in which the parlies to the mistake may be parties to the suit also. The complainants, therefore, have nothing more than the qualified interest which the husbands had in the estate of their wives, and that is a mere contingent interest; for the husbands may die before the life estate is terminated, in which case it will never vest.

The next question then is, whether the complainants have such an interest as will entitle them to a suit for waste ? And on that subject I think the law is very clear. Judge Blackstone says, “ he who has the remainder for life only is not entitled to sue for waste, since his interest may never come into possession and *then he has suffered no injury.” 3 Black. Com. 225. See also Co. Lit. 218, 6. And the reason is very obvious. The injury done by waste is an injury to him who is entitled to the inheritance, and to no one else. And although an intermediate tenant for life may have an injunction, it can only be to prevent those acts which are immediately injurious to his estate, yet he cannot recover for the waste, because that inures only to him who is entitled to the inheritance. Berwick v. Whitfield, 3 P. Wms. 267.

The complainants may possibly become intermediate tenants for life upon the death of the first tenant, still it is but a contingent interest which they possess, because it may be determined before the termination of the first life estate. They have not, therefore, such an estate as will enable them to sustain this bill. The decree must be reversed and the bill dismissed with costs.

Bill dismissed.  