The Hawaiian gazette., 1884-08-13
Supreme Court of the Hawaiian Islands.
In Equity.
MAKANoASOA MERsDURGH VS.. JAMES Rem
TON AND THE UNION MILL Co.
Opinion Of Chancellor ,JpI,

This is 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 s., 900, with interest at
S per cent per annum and is dated Sept. llth,
1877. 1t became due Sept. llth, 1881. The
answer admits the execution o. 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 and interest: and on enquiry why it
was not demanded defendant learned that the
mortgage and note were lost, whcreupon de-
PENDANT agreed TO pay principal and interest
upon sufficient bond of indemnity being exc
cuted. The offer to furnish indemnity was
made by plaintiff in March 1881. The proofs
show that tue interest was paid regularly up
to the llth March, 1881, 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 Of the mortgage nor
authorized any demand on her behalf; also that
DO tender WINS made to her 1t is i'll evidence,
however, that Mr.. Brown the attorney for de-
PENDANT wrote, soon after the mortgage became
due, to Mr.. Vida, who was acting as plaintiffs
agent, and ascertained that the mortgage and
note were lost and then offered TO pay the
amount due, on Mr.. Yida's engaging to provide
suitable indemnity This Mr.. Vida declined
TO do, and matters went along until March of
this year, when Mr.. Brown offered to pay one
half of the computed interest, which offer being
refused, this bill is brought.
In Jones on Mortgages, Sec. 800, it is laid
down that "it is a settled rule that interest
will cease to run from the time of tender, when
the money really due upon the mortgage is
actually and properly rendered by person
having the right to make the tender, so that
the mortgage is bound to accept it."
But tested by the well settled rules of law
applicable, no sufficient tender has been shown
to have been made. For tender must be alb
solute and unconditional. No actual money
was offered.
Indemnity is required in case oil lost note
in order that the payee may not be twice liable
on the same instrument, but there are album
dant authorities to this effect that if the note
is not negotiable no indemnity can be required
No question is however made in this case as
TO the right of the plaintiff TO foreclose the
mortgage upon secondary evidence, i. C. the
certified copy Of the mortgage from the Reg
istrar's Office. the original being lost.
am of the opinion that the plaintiff ought
TO recover full interest. 1t was the duty Of
The debtor TO see his creditor. to make his pay
ment and to make legal proffer of the money,
if he expected TO stop interest.
Decree accordingly.
J. NJ. MOrserrat for plaintiff; c. Brown fol
defendants.
Honolulu, July 22d, 1851.