Federal Land Bank of New Orleans v. Mississippi Power & Light Co.

• Decision Date: 05 May 1930
• Docket Number: 28658
• Parties: FEDERAL LAND BANK OF NEW ORLEANS v. MISSISSIPPI POWER & LIGHT CO. et al
• Court: Mississippi Supreme Court

128 So. 98

157 Miss. 737

FEDERAL LAND BANK OF NEW ORLEANS v. MISSISSIPPI POWER & LIGHT CO. et al

No. 28658

Supreme Court of Mississippi

May 5, 1930

Division B

1 EQUITY.

On demurrer, court must construe bill most strongly against pleader.

2 MORTGAGES.

First mortgagee, not alleging value of land or that construction of power line depreciated value, held not entitled to have amount which owner received from power company and paid to second mortgagee delivered to first mortgagee to be held in trust.

3 EQUITY.

Court of equity does not take cognizance of injuries which are only nominal.

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Lincoln county HON. V. J. STRICKER, Chancellor.

Suit by the Federal Land Bank of New Orleans against the Mississippi Power & Light Company and others. From the decree, complainant appeals. Affirmed.

Affirmed.

P. Z. and R. L. Jones, of Brookhaven, and Wells, Jones, Wells & Lipscomb, of Jackson, for appellant.

A mortgagee has the right to restrain the commission of waste if it impairs his security, and it is impaired by acts which render the security insufficient for the satisfaction of the debt or of doubtful sufficiency.

Beavers Lumber Co. v. Eccles, 43 Ore. 400, 73 P. 201, 99 Am. St. Rep. 759; Moriarty v. Askworth, 43 Minn. 1, 19 Am. St. Rep. 203, 44 N.W. 531; King v. Smith, 2 Hare, 239, 244; Coker v. Whitlock, 54 Ala. 180; Buckout v. Swift, 27 Cal. 433, 87 Am. Dec. 90; Harris v. Bannon, 78 Ky. 568.

A mortgagee has a right to his security unimpaired and he may maintain an action for waste or damages in his own name, either against the mortgagor or a third person, although the security remains ample for his protection.

Delano v. Smith, 206 Mass. 365, 92 N.E. 500; Gooding v. Shea, 103 Mass. 360, 4 Am. St. Rep. 563; Bank of Hevelock v. Western Union Telegraph Co., 141 F. 522; Stevenson v. Lord, 25 P. 313.

Brady, Dean & Hobbs, of Brookhaven, for appellees.

The demurrer was properly sustained because appellant did not charge in its bill of complaint, as amended, that the sufficiency of its security had been impaired.

19 C. J., p. 623; 19 R. C. L., 322-3.

Green, Green & Potter, of Jackson, for appellees.

Nowhere is it averred in the bill that the debt will not be paid at maturity, nor is it averred that Bonfiglio is insolvent. Nowhere is it averred that the construction of this power line did not enhance the value of the property.

OPINION

Griffith, J.

Appellant had a first mortgage on the lands in question, and the Brookhaven Bank & Trust Company, one of the appellees, had a second mortgage. Without the consent of the owner of the land, that is to say, the mortgagor, and without the consent of either of the mortgagees, the appellee power and light company entered upon the land and constructed across it a power line and in doing so cut and destroyed timber to the value of...