The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1884-12-24

oAhlCu vi pdlCclb Vi real Cetslltf AUl
chattels described as follows:-"All that h9cl;
or herd of cattle and their increase running
at large in Manoa valley or elsewhere Oh the
Island Of Oahu and being in number one
hundred head more or less and branded PKG,
three bullock carts, egh. yokes and thirteen
chains also fifty head of horses, mares and
colts more or less and their increase aud
running at large in said Manoa or elsewhere
and branded p X c, also five horses in said
Manoa and branded CT, and also forty head
of cattle with their increase branded Et, and
running at large in said Manoa or elsewhere
on the Island Of Oahu"
Mr. Justice Austin by 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 first 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 valid sale under power, all the
directions of the power must be complied with,
says Wells j, in Cranston VS.. Crane 81 Mass.
463, and this is unquestioned. The counsel
for the defendants cite this case as over ruling
Roarty VS.. Mitchell Z Gray 243. We do not
think it does upon the 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, and the
Court held that entry at the time of sale was
sufficient In Roarty vs.. 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 Court
say chat it appears upon the agreed facts
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 be
equivalent, demand for possession and re
fusal 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 tue
above in requiring entry and possession, but
not that the sale be held on the premises.
Both cited cases require entry, with the sug-
gestion in the latter that demand and refusal
might be equivalent.
The proceedings upon sale of mortgaged
property without suit are established by
Chapter XXXIII 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-
perty for sale, "and also give such notices
and do all such acts as are authorized or re-
quired by the power contained in the mortg-
age" He is, thirdly, to file with the Re-
glstrar OF Conveyances, within thirty days
after said copy of the notice of sale an "af-
hdavit that he has in all respects complied
with the acquisitions of the power of sale in
relation to all things to be done by him before
selling the property" The first requisition
of the power of sale in this case was entry
and possession. The parties having made
this condition precedent are bound by it
without regard to any statute not recurring
1t; so, if it had been made condition that the
sale should be on the mortgaged 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 foreclose
abrogates the condition precedent, if the parties
have made it, that there shall be previous
entry and possession taken. The statute pro-
vides that besides such notice of intention,
the mortgages shall also give such notices and
do all such acts as are authorized or required
by the power.
The evidence in this case is that the de-
PENDANT MORTGAGE only demanded interest
due and threatened to foreClose. The threat
to foreclose can only be considered threat to
take all the steps required for legal fore
closure, among which was making entry. His
demand for debt due cannot be considered an
entry or taking possession. Upon this view
we hold 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
chattels will be considered in discussing the
third objection.
In IL toN Io Il Al.
sale made on the twentieth day after the first
publication of the notice was not in compli-
ance with the condition in the mortgage of
first giving three weeks notice of the time and
place of sale, we hold that not less than TWEEN
ty-one days was requisite. The authorities
which seem TO support the defendants position
are applicable to cases where insertion of the
notice lie required to be certain number of
times in weekly newspaper. They are other
wise when a publication is required for a Ger
tain period of time, as in this case "after three
weeks notice" not after three consecutive
weekly publications. For the full discussion
and citation of authorities on his head we refer
to the opinion of Mr.. Justice Austin.
The learned Justice also sustains the bill
on 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
chattels.
1t will not be controverted that the law re-
1uires the mortgage in the exercise of his
power to use discretion in an intelligent and
manner, not to Cypress tue debtor
or to sacrifice his estate. Perry on Trusts
Section 6O2.
We must apply this principle TO the facts
and circumstances of every case.
This sale was held at an auction room in the
city of Honolulu. So far as the real estate is
we have 10 reason to believe that
the sale in town was a disadvantage to the
1t is in accordance with Gus
tom of long standing. 1t would be inconveni-
ent and a disadvantage in many instances to
conduct the sale of real estate on the premises,
if there were sundry lots at some
distance from town and from each other
Important sales and auction leases are made
in Honolulu of estates situated in all parts of
the Kingdom. And if the previous notice is
long enough there are many good reasons to
support this practice. Honolulu is the head
quarters Of capital aud business. The Regis
try of deeds, the Land office and tue Surveyor
Generals Office are here. Surveys may be
inspected and information. OBJ
tanned at the auction rooms or attorneys Of
fees during all the interval between advertise
meut anu SAFE we 40 NOT ulsappr0Ye OF the
place of sale Of the real estate in the present
case.
The cattle, horses, carts, etc. remained as
described in the mortgage quoted above, the
homestead Of the premises being within three
miles from town. They were advertised as
100 head of cattle, more or less, branded PIC
and running at Manoa SC. 1t is testified by
Mr.. Castle. "There was no possibility of
knowing what the stock was-no stock was
presented They were sold in lots Of ten and
perhaps (some) in lots of twenty. There was
some controversy. l consider there was a
sacrifice. The whole property was worth
$4,000" The plaintiff Sylvia says-"I had
30 good mich CONSISTS is the lowest price
Tor good mich cow-none of the livestock
was present at the sale-no measures were
aiken by defendant Lopez to drive them TO the
'ale-I proposed to drive them to a pen-Lopez
Iaid sNo.'-The COWS sold for $40 with their
,alves-no description of the horses given at
he sale-two lots were sold of ten each, bring
ng SlQO and SIlo severally."
We might cite other evidence. 1t is con-
Tincing that there was a heavy sacrifice.
Mas it necessary? We think NOT.
1t is said for defendant that the cattle could
lot have been driven to the auction room. |
hat is true. Police regulations would not
ermit it; but they might and should have
aar, ,.olfactad On the