Page:Federal Reporter, 1st Series, Volume 3.djvu/21

 14 l'EDEBAL BEFOBTSS. �Edwaeds, Trustee, v, Woodbdet and others. {Cireuit Court, D. Minnesota. June, 1880.) �1. MORTGAGOR AND MORTGAGEB — WaBTE — StATUTB — CoîfTRACT. — A �Btatutory provision that a mortgagor may continue to use the mort- gaged premises during the p'eriod allowed for redemption in the same manner as they have been previously used may be waived by con- tract. �Motion for Injunction. �Bigelow, Fland/rau e Clark, for motion. �W. E. Haie, contra. �McCeaet, C. J., (orally.) I have considered this case upon the motion for an injunction. This is a case in which there has been a decree of foreelosure upon a mortgage. The prayer is that the court will enjoin the removal of earth and sand from the premises, on the ground that it is an impair- ment of the security. The premises are about six aeres, within the corporate limits of the city of Minneapolis. The defendant is engaged in making brick, and for that purpose is taking earth and sand, and removing it from the surface of the premises. It appears that he has been in that busi- ness for some years, and was so engaged at the time of the giving of the mortgage. No attempt was made by the mort- gagee to interfere with him prior to the time of the sale under the foreelosure, but the purchaser at that sale, the present complainant, now insista that he has a right to stop this use of the premises. That cutting away earth and removing it from the surface of the soil is waste at common law, is very cîear, and I should bave no difficulty with this case had it not been for the statute of Minnesota, which provides as fol- lows : "Section 296. Until the expiration of the time allowed for redemption, the court may restrain the commission of waste on the property, by order granted with or without notice, on application of the purchaser or judgment crediter; but it is nOt waste for the person in possession of the prop- erty at the time of sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use ����