INJUNCTION AGAINST VENDOR 'OR PURCHASER 63 



an accounting may be decreed for that already cut. 1 

 Where defendants were insolvent and the timber which 

 had been cut constituted a principal part of the security, 

 a mortgagee has been granted an injunction against the 

 removal of timber already severed. - On similar ground 

 creditors have been permitted to restrain the removal of 

 timber by heirs of a deceased debtor :i and a trespasser 

 has been enjoined from removing timber pending a suit 

 for the determination of the plaintiff's title to the land from 

 which it had been cut. ' 



65 Injunction Against the Cutting of Timber 

 by a Vendor or Purchaser under an Executory Con- 

 tract. A vendor of land remaining in possession after 

 the execution of a contract of sale will be liable for 

 waste in the cutting of trees, except in reasonable quantity 

 for estovers, or under an express or implied agreement or 

 license from the purchaser, :> and by an injunction the 

 latter can restrain an unauthorized cutting. G A judg- 

 ment debtor may be enjoined from committing waste in 

 the cutting of trees from the attached land. 7 



While a contract for the purchase of land is executory, a 

 purchaser in possession is an equitable owner occupying a 

 position similar to a mortgagor in possession in a jurisdic- 

 tion where the equitable theory of a mortgage prevails. 

 Such a purchaser may ordinarily cut timber provided such 

 action does not imperil the security of the vendor for the 

 payment of the contract price. 8 It has been held that a 

 reservation of title to timber by a vendor until full pay- 

 ment for the timber was made operated only as a security 

 and the vendor could not sell the timber to another. '' 



1. Fleming v. Collins. '2 Del. Cli. !':{(); Wcat herby v. Wood, 29 How. Pr. (X. Y.) 401. 



2. Terry v. Robbins, 122 Fed. 725. 



:{. Tessier v. Wise. :< Bland. (Md.) 2S. 



I. Staples v. Rossi, 7 Ida. (US, (15 I'ac. (i7. 



5. Smith v. Forbes SO Miss. 141, 42 So. :<S2 (held liable for statutory penalty. 1 



But see Crawley v. Timberlake :57 X. C. 4IH) (clearing permitted in accord with 



custom.) 



<>. Ilolmberi; v. Johnson, 45 Kan. 197, 25 Pae. 575. 

 7. Camp v. Hates, 11 Conn. 51, 27 Am. Dec. 707: Moulton v. Stouel Iti \. II. L'L'! : 



Jones v. Brit toil 102 X. C. Kit!, 9 S. K. 554, 4 L. R. A. I7S; See also Vaiidermark 



v. Sehoonmaker 9 Hun. (X. Y.) Hi and Witmer's appeal 15 Pa. St. 455 SI Am. 



Dee. 505. 

 S. Van Wyck v. Alli^er (> Barb. (X. Y.) 507. Lalinhlin v. Xortli Wisconsin Lumber 



Co. 17(i Fed. 772. See also Moreton v. Reese. Wright (Ohio) :{S1. 

 9. IJruh-y v. Garvin 105 Wis. 025, 81 X. W. KK5S, 48 I,. R. A. s:$9. 



