Josiah Chase vs. Samuel Hazelton, 7 N.H. 171

Upham, J. delivered the opinion of the court. The locus in quo in this case was originally the property of one T. Forsaith, who had created a life estate in the same by grant, retaining the reversion in himself. The plaintiff subsequently attached Forsaith’s interest in the premises, and caused the same to be set off on execution; and this action is brought against the defendant to recover the damage done by Mm to the reversionary interest which the plaintiff had thus acquired.

An exception has been taken to the title of the plaintiff by his levy, for the reason that the appraisers/in their return, allege that the land was set off in full satisfaction of the execution, whereas the officer alleges it to have been set off in part satisfaction of the execution, at a sum less than that named by the appraisers by $16 26, the amount of his fees. It is contended that, on account of this variance, the levy is void; but this conclusion cannot be sustained.

The appraisers’ report constitutes a portion of the officer’s return so far as he relies upon it and adopts it; but in those cases where there is a variance betwixt the report of the appraisers and the officer’s return, the officer’s return is to govern, and is conclusive as to the levy. This doctrine was holden in the case of Lucas and Nudd, at the last July term in Grafton, and is sustained also by the Massachusetts conn in Williams vs. Amory. 14 Mass. 20. It .is also contended that waste lies where the reversion is created by act of law, and not where it has been created by the act of the party.

As a reason for this distinction, it is said that no action of waste lies, in such case, in favour of the grantor of an intermediate estate, because he might have secured himself by covenant for a forfeiture, if he chose to protect his remaining interest, whereas when the estate is created by law, the law only can provide for the security of the reversioner. 2 Inst. 300. 2 Saunders 252. a.

This was the case by the ancient common law, but it has been long since altered by the statutes of Marlebridge, and Gloucester, so that since the 6th of Edward I., waste has lain in England, in all cases, whether the reversion has been created by act of law, or not; and such is the case here, so far as those statutes have been adopted. Whether these statutes constitute a portion of our common law our courts have not been called upon to decide. They are considered as adopted as part of the law of Massachusetts, except so far as modified by their statutes. Sackett et al. vs. Sackett; 8 Pick. 309.

But waste is not the remedy here proposed. This action does not lie against a stranger, either by the common law or by statute. The Statute of Gloucester only gives the action of waste against the tenant for life, or a term of years. The remedy is of a highly penal character, designed to bear against those privy to the estate, giving treble damages, and judgment for the place wasted — and is not intended to alter the rule of damages where trespasses have been committed by a stranger. Case in the nature of'waste is a different action.

This is a common law remedy, attended with the imposition of ordinary damages merely, and is not possessory in its character. It does not require that the defendant should be charged as lessee, or assignee, which is the case in an action of waste, 2 Saund. 234, or that the writ should conclude by stating the waste to have been to the disinheriting of the plaintiff: Co. Lit. 285, a ; and there is nothing in its character necessarily to prevent its lying against a stranger.

There are cases of incidental waste, where it seems never to have been controverted but an action of this description will lie against a stranger. Thus it is said a reversioner, as well as a lessee for years in respect of his possession, may have an action upon the case against a stranger for surrounding his land with water, whereby his trees became corrupt and decayed, to the prejudice of his inheritance. And the lord of the manor may have an action upon the case against a stranger who cuts down trees upon a tenement of his copyholder to the prejudice of his inheritance. Com. Dig.

Action on the case for misfeasance, a. 2 ; 3 Lev. 209, 131. The remedy in this action is co-extensive with the liability to injury, whether from the tenant or a stranger; and the reversioner has a right to elect against whom to proceed. We know of no authority which restricts the action of case in the nature of waste within less limits; and we think it may be sustained by a reversioner against a stranger for an injury to the reversionary estate while in the possession and occupation of a tenant. 1 Chit. 142 ; 1 Saund. 322, n 5 ; Co. Lit. 57 ; Elliot vs. Smith, 2 N. H. R. 430; Brown vs. Dinsmore, 3 N. H.

R. 103 ; Randall vs. Cleavland, 6 Conn. 328. There is another question which arises in this case,— whether this conveyance of the life estate is without impeachment of waste ? It is a conveyance, by which For-saith, the grantor of the intermediate estate, “ releases and “quitclaims all his right, title, interest, estate and demand ‘ ‘ of, in and unto, the premises in question, to have and to “hold the same during the natural life of the grantee.” These words do not seem necessarily to convey any greater or different estate than a life estate created by act of law.

Where the life estate is created by the act of the party we have considered it settled that he has his remedy for an injury to the reversion, by an action of case, in the nature of waste. If such a remedy exists, the party ought not to be precluded from it except by his evident or expressed intention. And the usual form of barring an individual from this remedy is by conveyance :: without impeachment of waste.” The authorities cited by the plaintiff’s counsel seem to be in point that “if a tenant in fee release to his tenant for life all his right, yet he shall have an action of waste.” Co. Lit 345, b.

And “ if one be seized of land in fee, and “makes a lease of it to another for life, and afterwards “ releases all his right in the land for the life of the tenant “ for life, so as neither he nor his heirs shall have claim, or challenge any thing or right in that land fpr the life of “the tenant for life, by this release nothing is extinct or “ discharged but the causes of action of waste, that were “then, and not any cause that shall happen afterwards." Shep. Touch. 345.

We hold that the conveyance in this case is similar in its character to those cited, and that a life estate conveyed in the terms, as named in this instance, is subject to impeachment of waste. What is waste is a subject open to much discussion : and it is contended that no waste has been here committed. How far the tenant may be permitted to go in anyr alteration of the course of husbandry, or whether any alteration would be allowed in this respect, has not been determined in this State. The American doctrine on the subject of Waste is somewhat varied from the English law.

It has been holden in New-York that where wild and uncultivated land, wholly covered with wood and timber, is leased, the lessee may fell part of the wood and timber, so as to fit the land for cultivation, without being liable for waste : and it is said that it must be left to the sound discretion of a jury, under the direction of the court, to determine to what extent wood may be cut, before the tenant is guilty of waste. There are similar authorities in some other States. Jackson et als. vs. Brownson, 7 N. Y. Rep. 227; Hastings vs. Crunkleton, 13 Yates' Rep. 261; Findley vs. Smith, 6 Munf. 134; Crouch vs.

Puryear, 1 Randolph's Rep. 253; Parkins vs. Cone, 2 Hayw. 339 ; ditto 110 ; 4 Kent's Com. 77. There can be no hesitation in holding that a clearing up of land, which a jury have passed upon as bad husbandry, and where there is no pretence that the trees cut off are for firewood, fencing, or any of the botes allowed to the tenant, is waste. The exceptions taken cannot prevail, and there must be Judgment upon the verdict.