Delano v. Smith

• Decision Date: 07 September 1910
• Citation: 92 N.E. 500,206 Mass. 365
• Parties: DELANO v. SMITH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 365

92 N.E. 500

DELANO v. SMITH et al.

Supreme Judicial Court of Massachusetts, Middlesex.

September 7, 1910

COUNSEL

D. C. Delano, for plaintiff.

N. P Brown, for defendants Bruce and others.

Stover & Sweetser, for defendant estate of N. B. Smith.

OPINION

RUGG J.

This is an action of tort in the nature of waste. The defendants constituted the board of health in the city of Everett. The plaintiff was the mortgagee of certain real estate in that city, the buildings upon which consisted of one house of three tenements and a store and a stable. On or about the 21st day of December, 1901, the defendants, acting as members of the board of health, leased of the mortgagor said premises 'to be used as a contagious hospital.' Occupation for that purpose began at once and continued until December 22 1902, during which period 42 persons sick with smallpox were treated there, 6 of whom died. The plaintiff did not know of the lease, nor of such occupation, until after it had continued for several months. The defense is that the acts complained of were done under the authority of the lease given by the mortgagor.

It is to be noted that the defendants did not proceed under Pub St. c. 80, § 43, then in force (now Rev. Laws, c. 75, § 46, as amended by St. 1906, c. 365,§ 2). They undertook to perform the public duty incumbent upon them of providing a proper place for the treatment of persons suffering from smallpox by agreement with the mortgagor, and not by any exercise of the power delegated by the commonwealth. Whatever may be the law in other jurisdictions by statute or otherwise, 'it has long been settled in this commonwealth that as to all the world except the mortgagee the mortgagor is the owner of the mortgaged lands at least until the mortgagee has entered for possession.' Dolliver v. St. Joseph Fire & Marine Ins. Co., 128 Mass. 315, 35 Am. Rep. 378. Whether the mortgagee is in possession of the mortgaged premises or not, or whether his right to possession begins only with the breach of condition and there has been no breach, nevertheless he has such an interest in the property and its preservation as enables him to maintain an action in his own name for injury to it. Such right of action is founded not upon the right to present possession, but on title to the estate. He may maintain such an action, although his is a junior mortgage and although the security remains ample for his protection. He has a right to his security unimpaired. The leading principles by which the rights of mortgagor and mortgagee may be worked out are clearly explained by Wells, J., in Gooding v. Shea, 103 Mass. 360, 4 Am. Rep. 563. Cases which recognize a right of action in the mortgagee to recover damages for injury to his security are numerous. See for example James v. Worcester, 141 Mass. 361, 5 N.E. 826; Wilbur v. Moulton, 127 Mass. 509; Searle v. Sawyer, 127 Mass. 491, 34 Am. Rep. 425; Byrom v. Chapin, 113 Mass. 308-311; Stewart v. Finkelstone, 206 Mass. 30; 92 N.E. 37; Ocean Accident & Guarantee Corp. v. Ilford Gas Co. [1905] 2 K. B. 493; Fidelity Trust Co. v. Hoboken & M. R. Co., 71 N. J. Eq. 14, 63 A. 273. An action for such injury lies as well against the mortgagor, although rightfully in possession. The mortgagor is liable to the mortgagee for waste. The mortgagor in this respect stands to the mortgagee as a tenant to a landlord, or a tenant for life to a reversioner. Goodman v. Kine, 8 Beav. 379; King v. Smith, 2 Hare, 239; Page v. Robinson, 10 Cush. 99; Hutchins v. King, 1 Wall. 53, 17 L.Ed. 544. A lease made by the mortgagor after the rights of the mortgagee have become fixed cannot affect the latter in any way without his consent. Tilden v. Greenwood, 149 Mass. 567, 22 N.E. 45; Elmore v. Symonds, 183 Mass. 321, 67 N.E. 314.

The fundamental question, therefore, is whether upon the facts agreed it was permissible for the jury to find that waste had been committed. Under the conditions prevailing in this Commonwealth waste is an unreasonable or improper use, abuse mismanagement, or omission of duty touching real estate by one rightfully in possession which results in its substantial injury. It is the violation of an obligation to treat the premises in such manner that no harm be done to them, and that the estate may revert to those having an underlying interest undeteriorated by any willful or negligent act. Pyncheon v. Stearns, 11 Metc. 304, 45 Am. Dec. 207; U.S. v. Bostwick, 94 U.S. 53, 65, 24 L.Ed. 65; Townshend v. Moore, 33 N. J. Law, 284; Turner v. Wright, 2 De Gex, F. & J. 234, 246; 30 Am. & Eng. Enc. of Law (2d Ed.) 255, and cases cited. Waste does not necessarily mean a subtraction of something from the corporal substance of the estate. Perhaps it may not always include change in material condition, though it is not necessary to decide that point in this case. Its early and frequent application was in an agricultural sense, and it there means a damaging use not in accordance with good husbandry. Pratt v. Brett, 2 Madd. 62; Patterson v. Central & Canada Loan & Savings Co., 29 Ont. 134-137. It generally consists in some definite physical injury. This is shown by reference to the earlier definitions, as for instance that of Blackstone, who calls it a 'spoil or destruction in houses, gardens, trees and other corporeal hereditaments.' 2 Blackstone, Com. (Sherwood's Ed.) 281. On principle it follows that mere injury to the reputation of real estate or the supposed diminution of its value resting on whimsical or sentimental grounds or arising from dictates of custom or taste do not constitute waste. These considerations have...