Page:Federal Reporter, 1st Series, Volume 3.djvu/22

 BDWAEDS ». WOODBTJBY. 16' �it in the same manner in which it was prevîously used, or to use it in the ordinary course of husbandry, or to make the necessary repairs of buildings thereon, or to use wood or tim- ber on the property therefor, or for the repairs of fences, or for fuel in his family, while he occupies the property." �This property was used as a briok-yard prior to the fore- closure of the mortgage, and for several years previously. I should be inclined to the opinion, though not entirely clear upon the subject, that under that statute the party might continue to use the land as a brick-yard, and to take the earth from the surface, even though it might impair the security, were it not for a clause in the mortgage itself, to which I wUl call attention. �The mortgage provides that the mortgagor shall keep the premises "free from ail taxes and assessments whatever, and shall not do, or permit to be done, in, about, or upon -the premises, anything that may in anywise tend to weaken, damage, or diminish the security." My conclusion is that this statute does not prevent parties from àgreeiag or stipu- lating in the mortgage that nothing shall be done to impair the security. The statute fumishes a rule which would apply in the absence of a contract, but does not prevent the parties from making their own agreement. Here is a plain and unequiTOcal stipulation that the mortgagor shaU not do any- thing to impair the security of the mortgage. In my judg- ment the statute does not deny to the purchaser at the sale the benefits of the stipulation, The proof s make it clear that the removal of earth from these premises does impair, to a greater or less extent, the security of this purchaser. The mortgage debt is evidently about as much as the property is worth. It is manifest that outting and carrying away the surface of the earth is an injury to the property. �An injunction will be aUowed, ����