Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Mc Dowell vs. Blackstone Canal Company.

Nos. 11 and 12, and No. 14. The two former contracts had been completed; but No. 14 had never been completed by the plaintiff. The advances made exceeded the sums due for the contracts for the excavation &c. of Nos. 11 and 12, if they were applied to that purpose. The work on No. 14 was going on in connexion with the other work between December 1825 and March 1826, when part of the advances were made. No 14 however was left by the workmen unfinished, and they abandoned the completion of that contract.

The principal question was in what manner the payments by

way of advance were to be applied; and it was argued by Randall for the plaintiff, and by Whipple for the defendants.

STORY J. It is the opinion of the Court, that the advances being made on general account, and being so stated in the receipts, are to be applied in the first place to extinguish the amounts due upon the contracts which have been completed, and upon which alone the plaintiff has entitled himself to receive payment. They therefore go to discharge the amounts due for the completion of the contracts for the excavation and embankment of sections Nos. 11 and 12. But the work and labour upon section No. 14 was done under an entirely new and distinct contract, and that contract has never been fulfilled by the plaintiff so as to entitle him to any payment. On the contrary, his workmen have abandoned the job and run away. The advances therefore cannot be applied by the plaintiff in part payment of this contract, though made between December 1825 and March 1826, while the whole work on all the sections, Nos. 11, 12 and 14, was going on, for the decisive reason, that no man has a right to apply advances to a contract, when he has no claim to any money as earned under that contract. The money advanced is more than sufficient to pay all that is due, under the contracts for sections Nos. 11 and 12; and therefore we think it must be so applied in point of law, and the plaintiff, not having sued on the

Mc Dowell vs. Blackstone Canal Company.

contract for section No. 14, is not entitled to recover in this action. Indeed it appears, that No. 14 has been since finished by other persons, upon a new contract with the corporation, at an extraordinary expense.

The plaintiff submitted to a discontinuance.

LUTHER LOOMIS vs. DANIEL WILBUR.

It is not waste, in a tenant for life, to cut down timber trees for the purpose of making necessary repairs on the estate, and to sell them and purchase boards with the proceeds, for such repairs, provided this be proved to be the most economical mode of making the repairs.

THIS was an action of waste under the statute of Rhode Island, (See Digest of 1822, p. 199,) for the recovery of the freehold wasted. Plea, the general issue.

Daniel Wilbur, deceased, by his will, made on the 20th December 1802, and proved on 1st of June 1807, devised all his lands undisposed of, including the premises, to his son Daniel Wilbur, the defendant, for his life, remainder to his wife for her life, if she survived him, remainder to Daniel Wilbur, his grandson, and son of his son Daniel, in fee; but if his said grandson died before 21 years of age, &c. then to his son Daniel in fee. The grandson attained the age of 21 years and is still living. The grandson sold his interest in the estate to one James Aldrich, through whom, and by intermediate conveyances, and a levy on execution, the premises came to the plaintiff on the 23d of December 1825.

The only waste proved was, the cutting of a few timber trees sparsely on the land, not exceeding ten or fifteen in number. It was proved, that the defendant was very poor and unable to repair the fences and buildings from other means; that the principal part of the trees were cut down for repairs of the build

Loomis vs. Wilbur.

ings. They were sold by an agent, and boards, already sawed, &c. were purchased with the proceeds and applied to the repairs. This was the most economical way of attaining the object, and most for the benefit of the estate, and was done on consultation with the agent, before the trees were cut down. It was also proved, that a timber tree or two were cut down, and sold; but whether the proceeds were applied to repairs did not appear. But it did appear, that the defendant owned a contiguous wood lot, and sometimes used the timber from that lot for fire bote and house bote.

The cause was argued by Richmond for the plaintiff, and by Tillinghast for the defendant. The plaintiff contended, that the case of waste was clearly made out, and that the sale of the timber was waste by the authorities; that the tenant might have cut down trees for the necessary repairs and fire bote; but had no right to sell them; and he cited Bac. Abridg. Waste F. The defendant contended, that there was no waste; that no injury was done to the estate; that repairs were necessary; and there was no difference between applying the proceeds of the sale and the identical timber.

STORY J. in summing up to the jury said: The supposed waste in this case is so very small in point of value, that if a forfeiture is incurred, it must operate with peculiar severity. The jury therefore ought clearly to see, that the plaintiff makes out his case upon reasonable evidence. The question in cases of this nature is, whether the tenant has done any injury to the inheritance; for the averment in the declaration is, that the timber has been cut down to his disherison. If, under all the circumstances, what has been done, has been for the benefit of the estate, for necessary repairs, and for the interest of the remainder-man, then there has been no waste. Now it is admitted, that the tenant is very poor and had no other means to repair; and that the repairs were indispensable, and any longer omission would have been very

Loomis vs. Wilbur.

injurious to the estate. The quantity of timber applied to the repairs is not pretended to be extravagant or unnecessary. But it is said, that the same timber, which was cut down, ought to have been applied, and not sold, and that the sale was per se waste. For this position reliance is placed on a citation from Bac. Abridg. Waste F., where it is said, that if a lessee cuts trees and sells them for money, though with the money he repairs the house, it is waste. The authority relied on in Bac. Abridg. is 1 Co. Litt. 53 b. The doctrine there stated may be good law, if it be properly understood and limited. If the cutting down of the timber was without any intention of repairs, but for sale generally, the act itself would doubtless be waste; and if so, it would not be purged or its character changed, by a subsequent application of the proceeds to repairs. But if the cutting down and sale were originally for the purpose of repairs, and the sale was an economical mode of making the repairs, and the most for the benefit of all concerned, and the proceeds were bona fide applied for that purpose, in pursuance of the original intention, it does not appear to me to be possible, that such a cutting down and sale can be waste. It would be repugnant to the principles of common sense, that the tenant should be obliged to make the repairs in the way most expensive and injurious to the estate.

As to the other part of the case, the sale of one or two trees, the application of which to repairs is not established, it is, if at all, waste in its most minute form. But the jury will judge of the . facts, and consider in the first place, whether the proceeds might not have been applied to the repairs. In the next place, if they were not, but if an equal quantity of timber from the other woodlot of the defendant was so applied, and these trees were only taken by way of compensation and remuneration therefor, then there was no waste.

It has been said, that the terms of the will make the tenant for life dispunishable of waste, and that the intention was to give him a full and entire control of the inheritance during his life. The

Loomis vs. Wilbur.

words are certainly very broad and comprehensive, giving ample powers to a tenant for life for general purposes; but my opinion is, that they do not authorize any act to be done, which injures the inheritance, much less do they authorize positive waste.

Verdict for the tenant.

EBENEZER Wakefield vs. LEMUEL Ross.

Where a boundary is disputed between parties who own adjoining tracts of land, and they agree to erect a fence on what is supposed to be the true boundary, and the possession continues according to that line for twenty years, in the absence of all counter proof of any other actual boundary, that line ought to be deemed the true one, and to conclude persons claiming under them by subsequent convey.

ances.

Where A. owned the head lot No. 18, and sold to B. forty acres on the east end of that lot, and afterwards sold to C. by the following description; "a certain tract or parcel of land situate, &c. and contains thirty acres by measure," being "the west part of the head lot No. 18," it not being shown, that the parties at that time knew, that the whole lot contained more than seventy acres, although in fact it did contain more; it was held, that the deed to C. conveyed all the land in the lot, not conveyed to A., and was not limited to thirty acres at the west end of the lot. There being actual boundary lines afterwards stated in the same deed, it was farther held, that those boundary lines must govern, even if they included more than thirty acres.

Where a party is disseized, he cannot convey by a quitclaim deed his title to the premises of which he is disseized.

Persons who do not believe in the existence of a God, or in a future state of existence, are not competent witnesses.

EJECTMEMT for lands situate in Rhode Island. The defendant pleaded, 1. not guilty: 2. the statute bar of twenty years' possession under the statute of Rhode Island for quieting possessions. To the last plea there was a replication denying the twenty years' possession. Issues being joined on both pleas, the cause was tried at this term, when the material facts and evidence, were as follows.

The plaintiff's demand was for two contiguous parcels of land, one of which he claimed as owner of the south part of the head lot No. 17, and the other as the owner of the east part of the

« ΠροηγούμενηΣυνέχεια »