The Hawaiian gazette., 1884-08-13
Supreme Court of the Hawaiian Islands
In Equity.
MAKANoANoA MERsDuRGH vs.. JAMES Rem
TON AND rHE UNION MILL Co.
opinion Of Chancellor Jrafd.

This is a bill in equity TO foreclose a mort
gage made by the defendant RentOn on certain
lands in kohala, Hawaii, tho estate having
been transferred TO the Union Mill Co.
The mortgage is for 81 900, with interest at
S per cent per annum and is dated Sept. llth,
1877. Ii became due Sept. lltl, 1881. The
answer admits the execution os the mortgage
and the transfer of the estate, but alleges that
when the mortgage was due payment was not
demanded, though the defendant Co. was will
ling and prepared to pay the amount due,
principal aud interest: and on enquiry why il
was not demanded defendant learned that the
mortgage and note were lost, whcrcupon de-
PENDANT agreed TO pay principal and interest
upon a sufficient bond Of indemnity being exc
! cutei. The offer to furnish indemnity was
made by plaintiff in March 1881. The proofs
| show that tue interest was paid regularly up
to the llih March, 1851, and that there was
due Of interest, up 10 the llth September;
1881, eighty dollars. The sum Of $4,000 prin-
| cipal and $50 interest is paid into Court. The
contest in this case is upon the question
whether the defendant is now liable for full
interest to date. The defendant contends that
interest ceases to run from the time of its offer
TO pay on the execution of indemnity.
The plaintiff contends that no legal tender
was made and that full interest should be
allowed her.
The plaintiff says, in evidence, that she
never demanded payment o! the mortgage nor
authorized any demand on her behalf; also that
| 20 tender was made to her. 1t is in evidence
however, that Mr.. Brown the attorney for de-
| PENDANT wrote, soon after the mortgage became
due, to Mr.. Vida, who was acting as plaintiff
| agent, and ascertained that the mortgage and
note were lost and thea offered TO pay the
amount due, on Mr. Vida's engaging to provide
suitable indemnity This Mr.. Vida declined
| to do, and matters went along until March o.
this year, when Mr.. Brown offered to pay on,
halfof the computed interest, which offer being
refused, this bill is brought.
In Jones on Mortgages, Sec. 500, it is lait
down that sit is a settled rule that interes
Will cease to run from the time of tender, wheI
the money really due upon the mortgage il
actually and properly rendered by persor
having the right TO make the tender, so tina
the mortgage is bound to accept it."
But tested by the well settled rules of Law
applicable, no sufficient tender has been show
to have been made. For a tender must be alb
solute and unconditional No actual more,
was offered.
Indemnity is required in case OF a lost not,
in order that the payee may not be twice liabl,
on the same instrument, but there are abun
dant authorities TO this effect that if the not
is not negotiable no indemnity can be required
No question is however made in this case a
to the right of the plaintiff TO foreclose tn
mortgage upon secondary evidence, j. e. tn
certified copy Of the mortgage from the Reg
istrar's office. the original being lost.
am Of the opinion that the plaintiff ough
to recover full interest. 1t was the duty o
The debtor TO see his creditor, to make his pay
ment and to make legal profer of the money
if he expected TO stop interest.
Decree accordingly.
J. NJ. MOnserrat for plaintiff; c. Brown 70
defendants
Honolulu, July 22d, 1881.