WARRANTY1, VOUCHER2 TO, practice. A warranty is a contract real, annexed4 to lands and tenements5, whereby a man is bound to defend such lands and tenements from another person; and in case of eviction6 by title paramount7, to give him lands of equal value.
2. Voucher to warranty is the calling of such warrantor into court by the party warranted, (when tenant8 in a real action brought for recovery of such lands,) to defend the suit for him; Co. Litt. 101, b; Com. Dig. Voucher, A 1; Booth, 43 2 Saund. 32, n. 1; and the time of such voucher is after the deman-dant has counted. It lies in most real and mixed actions, but not in personal. Where the voucher has been made and allowed by the court, the vouchee either voluntarily appears, or there issues a judicial9 writ10 (called a summons ad warrantizandum,) commanding the sheriff to summon him. Where he, either voluntar-ily or in obedience11 to this writ, appears and offers to warrant the land to the tenant, it is called entering into the warranty; after which he is considered as tenant in the action, in the place of the original tenant. The deman-dant then counts against him de novo, the vouchee pleads to the new count, and the cause proceeds to issue. 2 Inst. 241 a; 2 Saund. 32, n. 1; Booth, 46.
3. Voucher of warranty is, in the present rarity of real actions, unknown in practice. Steph. Plead. 85.
WASTE. A spoil or destruction houses, gardens, trees, or other corporeal12 hereditaments, to the disherison of him that hath the remainder or reversion in fee simple or fee tail 2 Bl. Comm. 281.
2. The doctrine13 of waste is somewhat different in this country from what it is in England. It is adapted to our circumstances. 3 Yeates, R. 261; 4 Kent, Com. 76; Walk. Intr. 278; 7 John. Rep. 227; 2 Hayw. R. 339; 2 Hayw. R. 110; 6 Munf. R. 134; 1 Rand. Rep. 258; 6 Yerg. Rep. 334. Waste is either voluntary or permissive.
3. - §1. Voluntary waste. A voluntary waste is an act of commission, as tearing down a house. This kind of waste is committed in houses, in timber, and in land. It is committed in houses by removing wainscots, floors, benches, furnaces, window-glass, windows, doors, shelves, and other things once fixed14 to the freehold, although they may have been erected16 by the lessee17 himself, unless they were erected for the purposes of trade. See Fixtures18; Bac. Ab. Waste, C 6. And this kind of waste may take place not only in pulling down houses, or parts of them, but also in changing their forms; as, if the tenant pull down a house and erect15 a new one in the place, whether it be larger or smaller than the first; 2 Roll. Ab. 815 , 1. 33; or convert a parlor19 into a stable; or a grist-mill into a fulling-mill; 2 Roll. Abr. 814, 815; or turn two rooms into one. 2 Roll. Ab. 815, 1. 37. The building of a house where there was none before is said to be a waste; Co. Litt. 53, a; and taking it down after it is built, is a waste. Com. Dig. Waste, D 2. It is a general rule that when a lessee has annexed anything to the freehold during the term, and afterwards takes it away, it is waste. 3 East, 51. This principle is established in the French law. Lois des Bit. part. 2,
3, art. 1; 18 Toull. n. 457.
4. But at a very early period several exceptions were attempted to be made to this rule, which were at last effectually engrafted upon it in favor of trade, and of those vessels20 and utensils21, which are immediately subservient22 to the purposes of trade. Ibid.
5. This relaxation23 of the old rule has taken place between two descriptions of persons; that is, between the landlord and tenant, and between the tenant for life or tenant in tail and the remainder-man or reversioner.
6. As between the landlord and tenant it is now the law, that if the lessee annex3 any chattel24 to the house for the purpose of his trade, he may disunite it during the continuance of his interest, 1 H. B. 258. But this relation extends only to erections for the purposes of trade.
7. It has been decided25 that a tenant for years may remove cider-mills, orna-mental marble chimney pieces, wainscots fixed only by screws, and such like. 2 Bl. Com. 281, note by Chitty. A tenant of a farm cannot remove buildings which he has erected for the purposes of husbandry, and the better enjoyment26 of the profits of the land, though he thereby27 leaves the premises28 the same as when he entered. 2 East, 88; 3 East, 51; 6 Johns., Rep. 5; 7 Mass. Rep. 433.#p#副标题#e#
8. Voluntary waste may be committed on timber, and in the country from which we have borrowed our laws, the law is very strict. In Pennsylvania, however, and many of the other states, the law has applied29 itself to our situation, and those acts which in England would amount to waste, are not so accounted here. Stark30. Ev. part 4, p. 1667, n.; 3 Yeates, 251. Where wild and uncultivated land, wholly covered with wood and timber, is leased, the lessee may fell a part pf the wood and timber, so as to fit the land for cultivation31, without being liable to waste, but he cannot cut down the whole so as permanently32 to injure the inheritance. And to what extent the wood and timber on such land may be cut down without waste, is a question of fact for the jury under the direction of the court. 7 Johns. R. 227. The tenant may cut down trees for the reparation of the houses, fences, hedges, stiles, gates, and the like; Co. Litt. 53, b; and for mixing and repairing all instruments of husbandry, as ploughs, carts, harrows, rakes, forks, &c. Wood's Inst. 344. The tenant may, when he is unrestrained by the terms of his lease, out down timber, if there be not enough dead timber. Com. Dig Waste, D 5; F. N. B. 59 M. Where the tenant, by the conditions of his lease, is entitled to cut down timber, he is restrained nevertheless from cutting down ornamental33 trees, or those planted for shelter; 6 Ves. 419; or to exclude objects from sight. 16 Ves. 375.
9. Windfalls are the property of the landlord, for whatever is severed34 by inevitable35 necessity, as by a tempest, or by a trespasser36, and by wrong, belongs to him who has the inheritance. 3 P. Wms. 268; 11 Rep. 81, Bac. Abr. Waste, D 2.
10. Waste is frequently committed on cultivated fields, orchards38, gardens, meadows, and the like. It is proper here to remark that there is an implied covenant39 or agreement on the part of the lessee to use a farm in a husbandman-like manner, and not to exhaust the soil by neglectful or improper40 tillage. 5 T. R. 373. See 6 Ves. 328. It is therefore waste to convert arable41 to woodland and the contrary, or meadow to arable; or meadow to orchard37. Co. Lit. 53, b. Cutting down fruit trees; 2 Roll. Abr. 817, l. 30; although planted by the tenant himself, is waste; and it was held to be waste for an outgoing tenant of garden ground to plough up strawherry beds which be had bought of a former tenant when he entered. i Camp. 227.
11. It is a general rule that when lands are leased on which there are open mines of metal or coal or pits of gravel42, lime, clay, brick, earth, stone, and the like, the tenant may dig out of such mines, or pits. Com. Dig. Waste, D 4. But he cannot open any new mines or pits without being guilty of waste Co. Lit. 53 b; and carrying away the soil, is waste. Com. Dig. Waste, D 4.
12. - §2. Permissive waste. Permissive waste in houses is punishable where the tenant is expressly bound to repair, or where he is so bound on an implied covenant. See 2 Esp. R. 590; 1 Esp. Rep. 277; Bac. Abr. Covenant, F. It is waste if the tenant suffer a house leased to him to remain uncovered so long that the rafters or other timbers of the house become rotten, unless the house was uncovered when the tenant took possession. Com. Dig. Waste, D 2.
13. - §3. Of remedies for waste. The ancient writ of waste has been superseded43. It is usual to bring case in the nature of waste instead of the action of waste, as well for permissive as voluntary waste.
14. Some decisions have made it doubtful whether an action on the case for permissive waste can be maintained against any tenant for years. See 1 New Rep. 290; 4 Taunt44. 764; 7 Taunt. 392; S. C. 1 Moore, 100; 1 Saund. 323, a, n. i. Even where the lessee covenants45 not to do waste, the lessor has his election to bring either an action on the case, or of, covenant, against the lessee for waste done by him during the term. 2 Bl. Rep. 1111; 2 Saund. 252, c. n. In an action on the case in the nature of waste, the plaintiff recovers only damages for the waste.
15. The latter action has this advantage over an action of waste, that it may be brought by him in reversion or remainder for life or years, as well as in fee or in tail; and the plaintiff is entitled to costs in this action, which he cannot have in an action of waste., 2 Saund. 252, n. See, on the subject in general, Woodf. Landl. & T. 217, ch. 9, s. 1; Bac. Abr. Waste; Vin. Abr. Waste; Com. Dig. Waste; Supp. to Ves. jr. 50, 325, 441; 1 Vern. R. 23, n.; 2 Saund. 252, a, n. 7, 259, n. 11; Arch. Civ. Pl. 495; 2 Sell. Pr. 234; 3 Bl. Com. 180, note by Chitty; Anier. Dig. Waste; Whart. Dig. Waste; Bouv. Inst. Index, h. t.
As to remedies against waste by injunction, see 1 Vern. R. 23, n.; 5 P. Wms. 268, n. F; 1 Eq. Cas. Ab. 400; 6 Ves. 787, 107, 419; 8 Ves. 70; 16 Ves. 375; 2 Swanst. 251; 3 Madd. 498; Jacob's R. 70; Drew. on Inj. part 2, c. 1, p. 134. As between tenants46 in common, 5 Taunt. 24; 19 Ves. 159; 16 Ves. 132; 3 Bro. C. C. 622; 2 Dick. 667; Bouv. Inst. Index, h. t.; and the article Injunction. As to remedy by writ of estrepement to prevent waste, see Estrepement; Woodf Landl. & T. 447; 2 Yeates, 281; 4 Smith's Laws of Penn. 89; 3 Bl. Com. 226. As to remedies in cases of fraud in committing waste, see Hov. Fr. ch. 7, p. 226 to 238.
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