The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1884-12-31
Supreme Court OF the Hawaiian Islands,
In Banco. October Term. 1854
JOHN K. SILVA Er AIS VS.. ANroS1o J LorEz
1t AIS.

Ja9s {. j., MeCHiiy and 4nsfia J. J.. Opii,ion O.,
tss Cesrt By Necrfy J.
A bill in equity is brought to set aside sale
made by the chief defendant as mortgage,
under power Of sale.
The argument before us was based on lour
objections to the validity Of the sale, as fol-
lows:
or demand for the possession of the mortsaged
premises and chaitels, he neglected the per-
| Torrance Of a condition precedent"
"Seo1Rd That the advertisement Of sale by
LOPEZ, did not comply with the terms Of thu
power"
"Tairi. That the manner of conducting the
sale, especially as regards the live stock, was
grossly unfair to the mortgagors, and 4 breach
Of the implied condition that the sale should
be conducted to the highest advantage OF the
mOrtgagors."
"FoTtk. That defendant Brown, having
been attorney for the mortgage, violated hi.
duties as trustee for the mortsagors, by be-
coming purchaser at the sale, Of divers lots
of the mOrtgaged property"
The power Of sale is in these terms: -"Thet
the said party of the third part (LopeZ) hi:
executors, administrators or assigns, are here
by authorized and empowered to enter int,
and take possession Of the property and chat.
tells hereinbefore mentioned, aud sell the sam,
at public auction, first giving three week:
notice in the English aud Hawaiian languages
in two newspapers published and printed il
| Honolulu, of the time and place OF such sale
Default was made in the payment uf ID,
| hrst installment of semi-annual interest due
and the defendant proceeded to foruclose III,
mortgage by public sale The property con.
sisted of sundry parcels Of real estate, an,
chattels described as follovs:-''All that licl
or herd of cattle and their increase runuin:
| at large IN ManOa valley or elsewhere on tn,
Island Of Oahu and being in number on,
hundred head more OF less and branded PKG
| three bullock carts, eight yokes and ihirtoc,
chains also fifty head OF horses, mSr,s an,
colts more or less and their increase unt
running al large in said Mauoa or elsewher,
and branded 2 &C, also five horses in sait
Manoa and branded CT, and also forty hea,
Of cattle with their increase branded Et, anJ
running at large in said Manoa or elsewhert
on the Island Of Oahu"
Mr. Justice Austin by whom the case wal
heard in chambers, whence the appeal is t,
this Court, sustained the bill on The secoul
and third points Of controversy above stated
not sustaining it upon the first aud fourth.
The first objection to the validity Of the salt
is that there was no entry upon or demand fo
the possession Of the mortgaged premises anl
chattels.
To effect valid sale under power, all To,
directions of the power must be complied with
says Wells j, in Cranston VS.. Crane % Mass
463, and this is unquestioned. The counse
for the defendants cite this case as over rulin.
Roarty VS.. Mitchell Gray 2i3 We do no
think it does upon the point at issue. Tht
power contained in the first cited case auth
orized entry and sale, on the premises afte,
notice given of the time and place, and tn
Court held that entry at the time of sale wa
sufficient. In Roarty VS.. Mitchell the Language
| Of the power was that may enter and TAX
possession of said premises and may sell AM
dispose of the same after notice, and tue COur
say 'that it appears upon the agreed fact
that no possession was taken of nor cntr,
made upon the premises nor was any demant
for entry or possession made We think sucl
entry or possession or what perhaps would b
equivalent, demand for possession and re
fusal were conditions precedent without which
no valid sale could be made under the powe
of sale in the deed" The language of tn
power in the case at bar corresponds with th