The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1873-09-24

BEFORE nGkrwELI, v1cE-cuAxcEtioR-
3. RaeEf.la :. q 8. Jgla (. Akina.


r. Haekfsld e a. rs John K AkiRG
Bin for foreclosure Of a mortgage Of real es'
tate. The mortgage endorsed the mortgage
note to the compliments. and delivered to them
( the mortgage deed as security, but without a
I written assignment The respondent demurs on
the ground that the mortgage can only be assign
Ell BY written instrument, citing the following
sections of the Civil Code, viz:
Section 400, which provides for stamping " all
documents requiring 10 be stamped, that is to say.
all deeds. mortgages, leases and other conveyan-
ces Of real estate
Section AZ: No document required to be
stamped as in Section 40 shall be recorded or be
Of any validity IL any court Of this Kingdom M
less the same shall be daily stamped
Section 1858: No action shall be brought
or maintained upon any contract for the sale of
lands, ieoeuen;s or bersditamenis, or OF any in-
teresi 10 or concerning them, unless the promise,
contract or agreement upon which such action
shall be brought. OF some note or memorandum
thereof shall be in writing. and be signed BY the
party 10 be charged herewith or BY some person
,hereuntO by him lawfully authorised
Section 1862 An deeds, leases for term Of
more than one year. or other conveyance OF real
estate within this Kingdom, shall be recorded in
the Office Of the Registrar Of Conveyanees. and
every such conveyance not so recorded shall be
void as against any subsequent purchaser 10 good
faith and for valuable consideration, not having
SEXUAL notice Of such conveyance Of the same
real estate or any portion thereof. whose convey
ance shall be FIRST duly recorded"
c. c. Harris for compainanss.
w. c. Jones for respondents.
By rHE CoUET do not think parole assign
meut Of u mortgage OF real estate. accompanied
with endorsement Of the mortgage note aod de-
livery Of the mortgage deed, is invalid BY any
provision in our statutes.
The conveyenees requiring to be stamped and
recorded 10 order to their validity are Of course
written Instruments but l know no statute
which declares that 10 interest 10 land shall be
created by livery aud seisin, or by parole Ouly,
except as against BONA .fde purchasers for value
aud without notice.
Our Code substantially enacts the 4th and 18th
Sections Of the Statute. % Car. II, Cap. 3, omit
ting to enact those sections which declare that
certain interests in land shall be created by deed
only, and shall have the effect Of estates at will
if made By parole. and that certain interests in
land shall not be assigned, granted, or surren-
dered, unless it be by deed or note in writing"
There is also no enactment Of an exception 10
regard TO resulting trusts, made by the English
Statute.
10 this case there lie q recorded mortgage duly
signed by the party sought to be charged, and
that is all that is required as between these par
ties, as We have no statute vbich precludes tue
assignee Of a mortgage from bringing bill for
foreclosure in bis own name.
10 reaching this conclusion, have not been
embarrassed by questions raised under English
and American statutes.
The Massachusetts Statute for instance, en-
acts that no interests 10 land shall be assigned,
granted, or surrendered, unless by writing sign
ed as aforesaid, or BY the operation of law" /
should end it difficult to avoid the construction
placed on such statute by the Massachusetts,
Courts, which require the assignment Of mort
gage to be made in writing in order to base
real action for foreclosure. Such Is the judicial
view 10 Maine, New Jersey, Pennsylvania, lndi-
ana, Alabama and Maryland, although 1t is other
wise 10 most of the States. Young VS.. Miller,
8 Gray, 1881 Washburns Real Prop, edition
1868, ll3, aud notes; Brownies Statute of
Frauds. 66, and notes. But in the former strict
construction, the rights Of sssignees Of a mort
gage assigned by parole can secure their rights
in equity by making the assignor trustee for
their benefit. Undeniably there lie public policy
in the Statute Of Frauds, which gives means of
public information concerning land titles In my
opinion the same policy would require the assign
ment and discharge Of mortgages to be made
matter of record, but that policy is not yet msdc
law.
The case suggests the need Of legislation on
our Law of real estate.