The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1878-06-01
TIE PACIFIC


is whether the deed set forth in the pleadings as
having been executed lst August 1875, and &C
knowIedged on the l4th of the same month, was
in point of fact, a mortgage to secure the
repayment of a debt or was a deed for a certain
sum of money with a condition to reconvey
the property under certain conditions.
The deed upon the face of it is an absolute decd,
and the solution as to whether it was intended
to be a mortgage by the parties must depend
upon all the evidence and circumstances of the
case. Isl Washburn r. p. 494. 1t ap-
pears that previous to the date of the deed,
Padeken was owing the defendant the sum of
Sl3 ,242, to secure the payment OF which there
were in existence several mortgages upon Pade-
ken's lands and other property In Kohala,
Hawaii that at the time of the making of the
deed in question, Padeken had been arrested
and was detained in prison at Kohala upon a
charge of cattle stealing that a suit had been
commenced by one Ii. B. Jackson against
Padeken to recover the sum of $4,000 damages
for cattle alleged to have been feloniously taken.
And upon the allegation that the debt was
contracted in q fraudulent manner, and Il
further allegation that Padeken was disposing
of his property, an attachment had been placed
upon the said property that at the time of the
execution of the deed, LIST August 1875, the
indebtedness of Padeken to defendent had
increased as the defendant alleges, SO that there
was due and owing to him the sum of SIT ,665.
The deed above alluded to purports to convey
all the property previously uIOItSdSCu LIZ III
addition, all the horses and cattle branded
III. c." and the wool, s%ugar-mill, carts, and
other agricultural implements on the land with
the wool press and sorghum pan.
1t is charged in the Bill that the defendant
gave an agreement In writing to Padeken to
reconvey the lands and property if the amount
of the mortgages, interest and expenses to be
incurred in carrying on the ranch should be
paid on, or before December 31st 1875.
The defendant in his answer to the Bill says
that he did give such a agreement, but that it
was not done at the time of making the deed,
but subsequently. (This agreement is not pro-
duced.) But in the defendants letter to the
Hawaiian Gazette dated ODD Feb. 1877 and
published March 18th of the same year, he
uses the following expressions 81 required
of him to give me a deed of sale of certain lands
duly mortgaged to me, together with certain
other articles on the property at the same
time 1 gave him an agreement in writing to
redeed the lands and property to him, if, on or
before the 31st of December, 1875, he paid me
the amount of the mortgage, together with
accumulated interest and all expenses | had
incurred to carry on the ranch, while in my
possession. He asked me to do this as be
thought the property would realize more if
advertised for sale, and l was perfectly willing
to do so, as | preferred my money to the pro-
perty, though [ would not consent to let the
property go further to wreck, by being kept in
charge of any of his family"
By this it will appear. FIRST that Padeken did
not offer to sell the land, but being in prison
was required to make the deed. Second
that 50 at the same time" an agreement was
given to him to redeed the land if the amount
of the mortgage together with the accumulated
interest, ETC., was paid.
Third. That Padeken was unwilling to let
the land 90 to this defendant because he thought
it would realize more if advertised for sale.
F0urthly, That the defendant was willing
to make the arrangement because he - pre-
ferred his money to the property which is
equivalent to saying that ali the delendent
desired was to secure the repayment of his
money, but he continues, that he was unwilling
that the property d" should remain with any one
of his, Padeken's family because it would 60
to wreck" On this statement Of facts made
by the defendent himself, it cannot be doubted
that the deed upon which he relies, taken with
the agreement to reconvey, was a mortgage
intended to secure the repayment OF a previous
debt, and accordingly it appears by the defen.
dant's letter to Padeken, dated Sept. ID, 1875,
that Padeken claimed that he had a right to sell
the land that he had requested, in a letter a
week before, that it should be advertised and
the expenses Of advertising were to be paid by
Padeken. In that letter, defendant further
requested that Padeken send him a bill of sale
of some other things to secure the price of adver-
Using, stating as a reason, that if the suit then
pending for $4,000 went against him, it would
sweep away all and further adding " You un-
derstand me: you sell me these things to cover
the expenses of advertising, and if you are able
to sell the land, on paying me the cash, l viii
return them with the rest to you, if not they
are mine 1t will be seen that the PROPOSE
ton then made regarding these last mentioned
things was for a transaction exactly similar tC
that of the deed previously made in August
From all this it is evident that it was the clear
and certain intention of the parties that the
deed should operate as a security for the repay
ment of money, and if so, it can make no differ.
ence whether the agreement to reconYey be con.
tanned in the same instrument or as in thi.
case, in a different instrument it is still q mort
gage (4th Kent 142) and the mortgage has the
right of redemption. Indeed from all the evil
dence in the case there was not literally ar
agreement to reconvey to Padeken but rather
an agreement that Padeken might sell the land
and that the defendant would convey it tc
whomsoever might buy it, on receipt of the
debt.
But it appears from the records that thu
plaintiffs in this action had taken possession Of
a sugar mill included in the deed Of August
above alluded to and disposed of the same, anG
that the defendant in this action, at the Oct. Tern
of this Court, 1876, brought an action of trOUe,
for the value of the mill, and had verdict anG
judgment that the defence set up was, thai
the deed in question was q fraudulent one, anC
that the testimony, of John Padeken, the sOr
of the grantor, to the effect that the deed was
executed with the condition that the property
should be returned in three months, if Padeker
got over his troubles was given and whence il
was argued that the deed was made to defraud
hinder, or delay creditors, and Notwithstanding
the verdict was in favor of this defendant, thus
establishing the bona fdeS of the deed, anC
further, that on motion to set aside the verdict
the verdict was sustained, and thus the b0nt
tides of the deed is fully established hence i
is argued that the whole matter now before thu
Court is res adjud,catd, and that the judgment
obtained in the previous action is a bar to {
recovery in this proceeding, This point i
pressed upon the Court with great diligence
and ability, and in the course of argument it il
remarked that the only additional evidence nov
offered aaainst the zaliditu of this decd is tn.