The Hawaiian gazette., 1884-12-24

at large 10 Mauoa valley OF elsewhere uu Tie
Island Of Oahu aud being in number on.
hundred head more or less and branded 7 NJ
| three bullock carts, eight yokes aud thrice.
chains also fifty head Of horses, usT,S and
colts more or less aud their increase aud
running Al large IN said MauOa or clsgwhCT,
and branded z \ {, also five horses IN said
Manoa and branded CT, and also forty head
Of cattle with their increase branded Ei, and
running at large in said Manoa or elsewhere
on the Island Of Oahu
Mr. Justice Austin 10y whom the case was
heard in chambers, whence the appeal Is to
this Court, sustained the bill on the SECOND
and third points Of controversy above stated
not sustaining it upon the first aud fourth.
The irss objection to the validity OF the sale
is that there was no entry upon or demand for
the possession Of the mOrtgaged premises and
| chattels
To effect 4 valid sale under power, all the
directions Of the power must be complied with ,
SAYS Wells J, in CrInst0u vs.. Crane % Mass.
1853, aud this is unquesii0ned. The counsel
for the defendants cite this case as over ruling
Roarty VS.. Mitchell Gray 2i3. We do not
think it does upon tine point at issue. The
power contained in the first cited case auth
oriZed entry and sale, on the premises after
notice given of the time and place, aud the
Court held that entry at the time Of sale was
sufficient In ROaTty We. Mitchell the language
Of the power was that may enter and take
possession Of said premises and may sell and
dispose Of the same after notice, and the CuGr,
say that it appears upon the agreed lICls
that no possession was taken Of nor entry
made upon the premises nor was any demand
for entry or possession made We think such
entry or possession or what perhaps would he
equivalent, a demand for possession and re
tusal were conditions precedent without which
no valid sale could be made under the power
Of sale in the deed. The language of the
power in the case at bar corresponds with .lg
above in requiring entry and possession, but
not that the sale be held on the premises.
Both cited cases require entry, with the suE-
sasii0u in the latter that demand and refusal
might be equivalent.
The proceedings upon sale of m0u-aEgl
property without suit are established by
Chapter &NNIII Of the acts Of 1874. The act
provides that when power Of sale is con-
tanned in a mortgage, upon breach Of the con
dition, the mortgage may give notice OF his
intention to foreclose by publication for three
weeks before advertising the mOrtgaged pro-
periy for sale, "and also give such notices
and do all such acts as are authorized OF re-
CURED by the power contained in the mortg-
age He is, thirdly, to file with the Re
gistrar Of COnveyanCes, within thirty days
after said copy OF the notice OF sale an "af-
fdavit that he has in all respects complied
with the acquisitions Of the power Of sale in
relation to all things TO be done by bim before
selling tue property" The first rcIuisi.i0u
Of the power Of sale IN this case was entry
and possession. The parties having made
this condition precedent are bound by il
without regard to any statute not requiring
1t; so, if it had been made 4 condition that the
sale should be on the mortgased premises,
the statute not it requiring, this sale at any
other place would not be valid 1t cannot be con-
sidered that the statute requirement that three
weeks publication Of intention to f0reCl1s0
abrOgates the condition precedent, If the parties
have made il, that there shall be previous
entry and possession taken. The statute pro-
yides that besides such notice Of intention,
the mortgages shall also give such notices and
DO all such acts as arc authorized OF required
by the power.
The evidence in this case is that the de-
iendant mortgage only demanded interest
due and threatened to foreclose. The threat
10 foreclose can only be considered a threat 90
take all the steps required for legal fore
closure, among which was making entry. His
demand for debt due cannot be considered an
,ntry or taking possession. Upon this view
we bold that the sale Of the real estate was
invalid upon the first ground Of objection.
How far this is applicable to the sale Of the
,hattels will be considered in discussing the /
bird objection.
In regard to the second objection, that the |
ale made on the twentieth day after the first 1
publication Of the notice was not in c1mpii- |
lnCe with the condition in the mortgage Of |
irst giving three weeks notice OF the time and 1
llaCe Of sale, VIC hold that not less than twen- |
y-Ono days was requisite. The authorities |
which seem TO support the defendants position |
Ire applicable TO cases where insertion Of the |
l0tice lie required TO he a certain number Of |
lines in weekly newspaper. They are other |
wise when publication Is required for a Ger
ain period Of time, as in this case ''aftCr three
weeks notice" not after three consecutive |
weekly publications For the full discussion |
nd citation Of authorities on bis head we refer
o the opinion Of Mr.. Justice Austin.
The learned Justice also sustains the bill
n the third objection to the sale, as not being |
made in a fair and advantageous manner.
This objection applies only to the sale Of the
hattels.
It will not be contrgyeued that the law re-
uires the mortgage in the exercise Of his
SNGL " use AleCIbklOu III Au luLelllEtAE anu
sasonable manner, not to Cypress the debtor
r to sacrifice his estate. Perry on Trusts
oction co.,
We must apply this principle to the facts
nd circumstances Of every case.
This sale was held at an auction room in the
ity Of Honolulu. So far as the real estate is
oucerned we have 10 reason to believe that
he sale in town was disadvantage to the
iorEagors- 1t is in accordance with Gus
pm Of long standing. 1t would I've inconveui-
ut and a disadvantage in many instances to
ouduct the sale Of real estate on the premises, /
specially if there were sundry lots at some
istance from town and from each other
mporlans sales and auction leases arc made
! Honolulu Of estates situated in all paris of
be Kingdom. And if the previous notice Is
ing enough there are many good reasons 90
lpport this practice Honolulu is the head
usrters Of capital and business The Regis
Y Of deeds, the Land office and the Surveyor
enerals Office are here. Surveys may be
1nyeniently inspected and information. Oh
lined at the auction rUoms or attorneys Of
ces during all the interval between advertise
ent and sale. We do not disappr1ve OF the
lace Of sale Of the real estate in the present |
Use.
The cattle, horses, carts, etc. remained as
leSAAbtA ~ eLAt ul4lt6asc A4VssA aA9Nes cue .
Of the premises being within three
lies from town. They were advertised as
20 head Of cattle, more or less, branded Pic
ID running at Manoa sc. Il is testified by
r. Castle. There was no possibility Of
,owing what the stock was-no stock was
'eseated. They were sold in lots Of ten and
,rhaps (sOme) IN lots of twenty. There was
lme controversy. l consider there was
crihce. The whole property was worth
10000" The plaintiff sylvia says-'I had
good mich CONSISTS Is the lowest price [
r a good mich cow-none Of the livestock
as present at the sale-no measures were
ken by defendant Lopez to drive them 70 the
lei proposed to drive them to pen-Lopez D.
id 'No.'-The cows sold for $40 with their
lyes-no description Of the horses given at
e sale-two lots were sold Of ten each, bring
, Sl00 and >ll0 severaliy" :
We might cite other evidence Il is CON J
icing that there was a heavy sacrifice.
as it necessary? We think not
Il is said for defendant that tue cattle could
have been driven to the auction room.
at is true. Police regulations would not /
init II; but they might and should have >
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