Waste is an action which accrues to a tenant in remainder or reversion, against a tenant in possession, or to one tenant in common against another, for any destruction of the estate, either in houses, woods, or lands ; pending which action at law, a court of equity may award an injunction to prevent the farther commission of waste, until it is determined; or, if the court of equity should grant the injunction in the first instance, it would direct an issue to try the waste, and, upon the verdict’s being certified, would put an end to the controversy. It follows, therefore, that no person is entitled to an injunction to stay waste, unless he can maintain an action at law for it; which the plaintiff in this case could not do, because be has parted with all his interest, and only holds the title as a security for his money: he stands in the situation of a mortgagee out of possession; and although, in general, a mortgagor, in possession, is not liable for profits, because the mortgagee may avail himself of his legal remedy to get into possession, yet, pending that remedy, or a suit to foreclose, should it appear that the mortgagor, by his conduct, was likely to lessen the mortgagee’s security, this Court ought to restrain him in such conduct: but nothing of this sort appears in the casé before the Court, and the injunction must be denied.
On another day in this term the plaintiff filed another bill against the defendant to subject the land to the payment of the purchase-money; and charged the defendant with cutting and selling timber in a manner calculated to render the land an incompetent security, to prove which several affidavits were filed; and the injunction was awarded.