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1 Johns. Ch. 11

Kane v. Vanderburgh

New York Court of Chancery

Decided April 26, 1814

New York Court of Chancery · decided 1814-04-26

THE bill, which was for an injunction to stay waste, stated, that Abraham Tenbroeck, being seised in fee of the premises, devised them in fee to his daughter, Margaret, who devised them to her sister, Elizabeth Schuyler, for life, remainder to her children living at her death, and in default of such children, remainder to the children of her brother, Dirclc Tenbroeck, in fee.

Good law ✅— No negative treatment on recordhow we know

Decided 1814-04-26

How this case has been cited

Cited by 6 later decisions — most recently February 1896

1 federal appellate · 5 state decisions

30181418201830184018501860187018801890decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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The Chancellor.

¶1The waste is explicitly and sufficiently charged in the bill to support the injunction. Nor is it essential to this remedy that there should be an actual Us *12pendens in a court of law. There are numerous cases i» chancery, as Lord Hardwicke has frequently observed, (Perrot v. Perrot, 3 Atk. 94. Robinson v. Litton, 3 Atk. 210. Farrant v. Lovell, 3 Atk. 723. Garth v. Cotton, 1 Ves. 556.,) in which the court has interposed to stay waste, by the tenant, where no action can be maintained against him at law. Thus, where there is lessee for life, .remainder for life, remainder in fee; the mesne remainder-man cannot bring waste, nor the remainder-man in fee, but chancery will interpose and stay the waste.

¶2So equity will, in many cases, restrain waste, though the lease contain the clause without impeachment of waste, and which takes away the remedy at law, as where this power is exercised in an unreasonablemanner, and against conscience. (Aston v. Aston, 1 Ves. 264. Strathmore v. Bowes, 2 Bro. 88.)

¶3Chancery goes greater lengths than the courts of law in staying waste. It is a wholesome jurisdiction, tobe liberally exercised in the prevention of irreparable injury, and depends on much latitude of discretion in the court.

¶4The tenant for life is here suffering injury to his own interest, and he, by his tenants, is doing great injury to the inheritance, which it is his duty to prevent. He is bound to stop the mischief, or be responsible himself. To suppose that an ejectment must be actually commenced before the injunction can issue, is certainly an error; this would be placing the operation of waste beyond the reach of control during the period of the six months’ notice. Indeed, the notice to quit-may be considered as the commencement of an adverse proceeding at law, and sufficient to bring the case within the spirit of the decision in Lathrop v. Marsh, (5 Ves. 259.)

¶5Motion denied, with costs.

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