Ellison v. Smyth , 75 Iowa 570 ( 1888 )

Rothrock, J.

— No appeal was taken from the order modifying the temporary injunction. As modified, the defendants were enjoined from cutting any more timber, and they were permitted to prepare that already cut for market, and sell it; and, after deducting the expenses, pay the net proceeds upon the mortgage. At the preliminary hearing, which was upon affidavits, the court found the timber was cut with the knowledge and consent of the plaintiff, and with the understanding between the parties that the net proceeds of the sale of the same should be paid on plaintiff’s mortgage. The same questions of fact were in issue and tried upon the final hearing from which this appeal was taken. A careful examination of the. evidence has led us to the conclusion that the injunction was rightfully dissolved, upon the grounds that it appears, from a fair preponderance of the evidence, that the timber was cut under the agreement and understanding above mentioned; and there is nothing in the evidence to show that the defendants intended to apply the net proceeds to any other purpose than in payment of the mortgage. No timber had been cut for several months prior to the commencement of this action, and it does not appear that the defendants had any purpose or intention to cut any more. It appears to us that there was no cause for an injunction when it was issued, and there is nothing in the record, as it is presented to us, upon which the court could properly have found that the injunction should be continued until the period for redemption from the foreclosure sale expired. There was a large number of witnesses examined upon the hearing, upon the question as to the value of the land. The object of this testimony was to show on the part of the plaintiff that the committing of waste by cutting timber was an impairment of the mortgage security; and the defendants sought to show that the value of the land was so much greater than the amount of the mortgage that the plaintiff had no cause for commencing the action. It is unnecessary to determine this issue. We place our affirmance of the decree upon the ground that the cutting of timber was done with the knowledge and consent of the plaintiff ; and there is nothing to show that the defendants did not in good faith intend to carry out the agreement. They even offered, before this suit was commenced, to saw such of the timber as was suitable into railroad ties, and deliver them to the railroad company in plaintiff’s name, and to give him security for the application of the proceeds of all the timber and wood in payments on the mortgage. It is true the defendants did not apply any of the proceeds upon the mortgage. But the plaintiff has now no ground of complaint of their failure to do so. When this cause was tried there was nothing due on the mortgage. The land sold for sufficient to pay it in full, with interest and the cost of foreclosure. The decree of the district court will be Affirmed.