
    WILLIAM PHŒNIX v. SILAS C. CLARK.
    1. On bill by a mortgagee against a mortgagor, making other mortgagees, and judgment creditors of the mortgagor parties defendant, a decree for sale was made, to satisfy the encumbrances, according to their priorities. The property was sold under the decree. Afterwards, the mortgagee last in priority, the proceeds of the sale under the decree not being sufficient to pay any part of his mortgage, bought the property from the purchaser under the decree, and filed a bill against the mortgagor, who still remained in possession, to restrain him from committing waste. The injunction was allowed, and a motion to dissolve it was denied.
    2. After sale of mortgaged premises under decree and execution, the mortgagor in possession will be restrained from committing waste.
    Silas C. Clark and his wife gave several mortgages on lands in Morris county, the first of which was held by Edward W. Whelpley, the second by Barnabas Doremus, the third by Joseph Cutler, the fourth and fifth by Charles J. Skellinger and William Phoenix, respectively. Joseph Fairchild, Charles J. Skellenger, John Condifc, and John H. and Thomas Stephens recovered judgments against Clark, in the Circuit Court of Morris.
    Doremus filed his bill in this court for foreclosure and a sale of the mortgaged premises, and made the other mortgagees and the judgment creditors defendants. A decree was made for the sale of the premises to satisfy the encumbrances, according to their priorities.
    The sheriff sold the premises to one Freeman Wood, Phoenix not being present at the sale, and conveyed the premises to Wood ©n the 1st of October, 1846. The sum for which the premises sold was insufficient to pay any part of Phoenix’s mortgage, after satisfying the prior mortgages.
    On the 26th of October, 1846, Phoenix agreed with Wood to give him what he had -paid to the sheriff and $50 for the premises, and Wood agreed to take it, and thereupon conveyed the premises to Phoenix.
    On the 4th of November, 1846, Phoenix filed his bill stating the before-mentioned facts, and that he bought the premises from Wood, as aforesaid, in order to secure to himself the amount decreed to be paid to him on his mortgage; that the lands are a scanty security for the money so paid ; that they are still occupied by Clark; that he, Clark, is embarrassed in his pecuniary affairs, and unable to pay to him, Phoenix, the amount so adjudged and decreed to him; that since the said decree, and since the said sale to Wood, and since the said conveyance by Wood to him, Phoenix, Clark has committed great waste upon the premises by cutting down the wood and timber; and that, on the Friday or Saturday of the week before the bill was filed by Phoenix, Clark cut down a large quantity of wood and timber, and sold it to one Stephen Connett; and praying an injunction against Clark, restraining him from committing further waste.
    The injunction was granted.
    A motion was made, without answer, to dissolve the injunction.
    A demurrer was also filed to the bill.
    
      V. Dalrimple, in support of the demurrer and of the motion to dissolve the injunction.
    
      J. S. Hager, contra.
    
   The Chancellor.

The motion to dissolve is denied, and the demurrer to the bill overruled. It is true that the purchaser at the sheriff’s sale, or his grantee, might bring ejectment, and obtain from the court in which the ejectment is brought, a rale to stay waste, but in the meantime, and before that could be done, the mortgagor, remaining in possession, might destroy the property, or commit irreparable waste, and compensation in damages might not be attainable by reason of the inability of llie mortgagor to respond.

If this court should not, itself, put the purchaser at sheriif’s of mortgaged premises, in possession, it should certainly extend its arm to protect the property from waste and destruction until the purchaser can have an opportunity of obtaining the aid which a court of law, on ejectment being brought, can aiford him to prevent waste. In this case the title has passed from the defendant by the decree of this court. There is, therefore, no question of title in the way. The mortgagor is merely holding possession of the property, without pretence of title, till he can be lawfully dispossessed.

I have no doubt of the propriety of the interference of this smvt in such a ease by injunction.

Motion denied, and'demurrer overruled.  