Page:Federal Reporter, 1st Series, Volume 10.djvu/606

594 FSDSBAIi BEFOBIEB. �O'Pallon for the balance remaining. Having become purchasers of the mortgaged property, thus ascertaining its value, they appear before this court solely in that capacity, if they have now any right to proceed here. As purchasers they acquired the property as it was, stripped by waste if you will, previous to their purcliase. They did not thereby aoquire the right to damages for previous waste unless it passed by joint sale; for that right belonged solely to the bankrupt's assignee, and would be assets of the bankrupt's estate, or would be so much added to the value of the security. Dates are confused, leaving the facts to be settled as best they may under the evidence. The latest date for cutting timber on the Huskey tract is in July, 1874; but whether such cutting vras before or after the plaintiffs became purchasers there is nothing to show with definiteness. �Without going through by way of detailed analysis the large amount of evidence offered, the court holds that the plaintiffs, in the present aspect of the case, could not recover damages for any waste done prier to their purchase, July 17, 1874, and that there is no proof satisfactorily shown of any waste subsequent to that date for which the defendant is responsible. �To make this ruling more intelligible a full history of the case ought to be given: The salient points are that James J. O'Fallon was the mortgagee of the estate of the defendant ; that as such mort- gagee he licensed his mortgagor to proceed with the improvements of the mortgaged premises, which consisted mostly of wild land ; that the mortgagor thereupon cleared many acres, felling timber, etc., and also improving the residence building; that James J. O'Fallon, the mortgagee, to secure some of his parfcnership indebtedness, assigned the mortgage to the plaintiffs, (partnership creditors;) that the part- nership went into bankruptcy, together with James J., the partner; that thereupon, in the course of the administration of the bankrupt estate, it became necessary for the assignees in bankruptcy, and of these plaintiffs, holding the original mortgage, to institute proceedings to prevent waste, whereby the security would otherwise be dimin- ished in value, and the plaintiffs have a large demand against the bankrupt's general estate. The security was sold, and these plain- tiffs became the purchasers. What did they buy ? The property as it then was, diminished by whatever waste had been previously com- mitted? As purchasers they acquired no right of action as to waste previously committed, unless the same is covered by the sale. If such waste had been committed, whose was the right to recover there- for? If that right belonged to these plaintiffs, as assignees of the ��� �